HIS, HERS, AND THEIRS: DOMESTIC RELATIONS AND MARITAL

PROPERTY LAW IN TEXAS TO 1850

Jean A. Stuntz, B. A., J. D., M. A.

Dissertation Prepared for the Degree of

DOCTOR OF PHILOSOPHY

APPROVED:

Donald E. Chipman, Major ProfessorRandolph B. Campbell, Committee MemberHarland Hagler, Committee MemberRichard G. Lowe, Committee MemberLaura Stern, Committee MemberKimi King, University MemberRichard Golden, Chair of the Department

of HistoryC. Neal Tate, Dean of the Robert B.

Toulouse School of Graduate Studies

UNIVERSITY OF NORTH TEXAS

May 2000

Stuntz, Jean A., His, Hers, and Theirs: Domestic

Relations and Marital Property Law in Texas to 1850.

Doctor of Philosophy (History), May 2000, 287 pp., Six

maps, three appendices, reference list, seventy-nine

titles.

Texas law regarding the legal status of women and

their property rights developed from the mingling of

Spanish and English laws. Spanish laws regarding the

protection of women’s rights developed during the

centuries-long Reconquest, when the Spanish Christians

slowly took back the Iberian Peninsula from the Moorish

conquerors. Women were of special importance to the

expansion of Spanish civilization. Later, when Spain

conquered and colonized the New World, these rights for

women came, too.

In the New World, women’s rights under Spanish law

remained the same as in Spain. Again, the Spanish were

spreading their civilization across frontiers and women

needed protection. When the Spanish moved into Texas, they

brought their laws with them yet again. Archival evidence

demonstrates that Spanish laws in early Texas remained

essentially unchanged with regard to the status of women.

ii

Copyright 2000

by

Jean A. Stuntz

iii

ACKNOWLEDGMENTS

The author wishes to acknowledge the financial support

of the Hatton W. Sumners Foundation, the James Bonham

Chapter of the Daughters of the Texas Revolution, and the

Miss Ima Hogg Graduate Student Scholarship Fund. She is

also grateful to the Department of History at the

University of North Texas for their travel grants and

teaching fellowships that allowed her to complete this

work. Joseph W. McKnight, Professor at the Southern

Methodist University School of Law was very helpful from

the beginning of this project. The Borderlands historians

who meet annually at the Texas State Historical Association

meetings, offered guidance and motivation. The largest

debt of gratitude is to Donald E. Chipman, without whom

none of this would have happened.

iv

TABLE OF CONTENTS

Page

ACKNOWLEDGMENTS.......................................... iii

LIST OF MAPS............................................. vi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . .vii

Chapter

1. THE IMPACT OF SPANISH HISTORY ON THE DEVELOPMENT OFCASTILIAN LAW....................................... 1

2. LAS SIETE PARTIDAS............................... 24

3. DOMESTIC RELATION IN THE PARTIDAS................ 47

4. THE TRANSFER OF CASTILIAN LAWS TO NEW SPAIN...... 69

5. THE SPANISH LEGAL SYSTEM ARRIVES IN TEXAS ........ 96

6. WOMEN’S STATUS IN CASE LAW FROM SAN FERNANDO DEBEXAR . . . . . . . . . . . . . . . . . . . . . .109

7. THE IMPACT OF ENGLISH HISTORY ON THE DEVELOPMENT OFTHE ENGLISH COMMON LAW . . . . . . . . . . . . . 133

8. SPANISH AND ANGLO-AMERICAN LAWS COMBINE IN MEXICANTEXAS . . . . . . . . . . . . . . . . . . . . . .165

9. THE CREATION OF THE REPUBLIC OF TEXAS AND ITS LEGALSYSTEM . . . . . . . . . . . . . . . . . . . . . 202

10.THE STATE OF TEXAS AND ITS LEGAL SYSTEM . . . . 225

CONCLUSION . . . . . . . . . . . . . . . . . . . . 259

APPENDIX A............................................... 265

v

APPENDIX B............................................... 269

APPENDIX C............................................... 275

REFERENCE LIST........................................... 277

vi

LIST OF MAPS

MapPage

1. Roman Spain ........................................... 2

2. Spain in 1150 ......................................... 6

3. Spain in 1492 ......................................... 14

4. New Spain ............................................. 73

5. Anglo-Saxon England . . . . . . . . . . . . . . . . . 134

6. Stephen F. Austin’s Map of Texas . . . . . . . . . . .169

vii

INTRODUCTION

Law reflects society. When legislators enact laws,

they do so in the belief that they are benefiting their

community. When benevolent or constitutional monarchs

proclaim laws, they do so with the expectation that they and

their subjects will benefit from them. Thus, the laws

enacted by a society reflect its goals, its ideals, and its

expectations about the behavior of its citizens. However,

some laws turn out to be more beneficial than others.

Certain laws are disregarded by the citizens, while other

laws adjust to the changing needs of the community. Those

laws that remain in force and are absorbed into the culture

most truly reflect the real lives of the citizens.

An example from the late twentieth century would be the

imposition of the fifty-five-mile-per-hour speed limit by

the United States government. The national legislature had

good reasons for enacting the law, but the public in general

disregarded it. The ideal, then, was that society wanted to

conserve gasoline as an economic and national security

measure. An examination of speeding tickets given before,

during, and after the course of the law would reveal that

many people did not obey it. The public seemed to place

viii

more emphasis on its right to make decisions than it did on

obeying this law. In short, the culture rejected the ideal

of the legislators.

Historians can easily discover the ideal laws handed

down by authorities. Monarchies and republics both publish

their promulgations to educate the populace on the new laws.

These publications are usually kept in safe places and are

therefore available to researchers. Which laws were

actually followed and approved by the people is harder to

uncover. The Αliving law,≅ as opposed to the Αstatute

law,≅ is contained in the ways people interacted with their

legal system on a daily basis. Living law is contained in

documents that show how people used the laws of their

society. Wills, deeds, court reports, and administrative

records all document how citizens interacted with their

legal system. These records are kept at the local level and

so are more subject to the ravages of time. The historian

must work hard to discover how the living law differed from

the ideal law before he or she can draw conclusions about

the impact of laws on a given society.

The Texas legal system is unusual because it developed

from two different societies with very different ideals.

Spain instituted the first written legal system in Texas

when it began to settle the northern reaches of New Spain.

ix

From the time civilians founded San Antonio in 1718, to 1836

when Texas declared its independence from Mexico, the

Spanish system of laws prevailed in Texas. The other legal

system came to Texas with American colonists in the early

1800s. Americans had adapted the English common law system

to meet their own needs, and it was this system that these

men put into effect when they founded the Republic of Texas.

They soon found, though, that parts of the Spanish system

worked better for Texans than did the English system, so

legislators brought those parts of Spanish law into the

statutory laws of Texas.

What parts of Spanish law did Texas legislators adopt,

and why? How did those laws more accurately reflect what

Texans wanted from their legal system? The answers to these

questions begin with the development of the legal systems of

Spain and England and with the purposes of each system. In

reality, the legal system of each country is a result of its

history, its ideals, and its people. These topics will be

discussed in the body of this work. The two systems came

into contact with each other in Texas in the 1830s. Local

records will show how the people of Texas interacted with

their legal system under Mexican laws, which differed little

from Spanish law. American colonists in Texas followed

x

Mexican law as best they could, for as long as they could,

until 1836.

When Republic of Texas lawmakers wrote the constitution

and laws for the fledgling nation, they relied on their

experience with the Anglo-American legal system. Only in

the small areas of domestic relations and marital property

did they adopt Spanish traditional laws. These laws

developed in Spain to protect women and their property

because women were so important to the spread of Spanish

civilization along its frontier. Similarly, on the Texas

frontier, women were also important. Texas lawmakers

adopted Spanish laws developed under comparable

circumstances to protect women and their property from

creditors.

This work will discuss the context of events in the

histories of Spain and England that affected the development

of their respective legal systems. It will then focus on

the confrontation and combination of those systems in Texas.

Local documents such as wills, deeds, court cases, and

administrative records will demonstrate how American

colonists in Texas, accustomed to English common law,

interacted with Spanish laws. Legislative and

constitutional records will indicate which laws were enacted

by the Republic of Texas and by legislators in the state of

xi

Texas. Court cases in the early statehood period, 1845-

1850, will show how Spanish law continued its important role

in Texas law even after annexation into the United States.

Each legal system reflects its own society. By

examining the systems of Spain, England, the early United

States, and the Republic and state of Texas, readers will

reach a deeper understanding of why certain laws survived

and became part of the underlying culture of each nation.

Conclusions can then be drawn about the ideals and

aspirations of the people in these societies.

1

CHAPTER 1

THE IMPACT OF SPANISH HISTORY ON THE DEVELOPMENT

OF CASTILIAN LAW

The recorded history of Spain begins with the invasion

by Romans in 197 B.C.E. It took two hundred years for the

invaders to subdue the native inhabitants completely, and

then followed four hundred years of peace known as the Pax

Romana. The centuries of Roman rule left an obvious

physical impact on the Iberian Peninsula. Roman roads and

aqueducts, and a landholding system known as latifundia,

whereby some nobles owned vast tracts of land, are notable

legacies of Roman rule. The Roman Empire had already begun

to disintegrate when the Visigoths swept through Spain and

established their capital at Toledo in 554 of the current

era. Unlike the Romans, the Visigoths did not leave many

tangible reminders of their presence, but their system of

laws had a great impact on the future of women in Spain.

The Visigothic Code, Forum Judicum, consisted of both

ancient laws and laws enacted by various Visigothic kings.

It explicitly stated the rights and responsibilities of

women. It detailed what constituted a valid marriage, the

punishment that awaited a rapist, and most important for

this study, the property rights of women. Book Four of the

2

Code covered the areas of inheritance and property

ownership. Title Two in that book concerned the laws of

inheritance, and the first law of that title was that

daughters inherited equally with sons. Laws nine and ten

reiterated the rights of women in various degrees of

affinity to the deceased to inherit equally with men in the

same degree of affinity.1

Map 1. Roman Spain

Laws of property ownership show how each society

defines different levels of privileges, such as whether any

particular class of people have the right to own property.

Visigothic law, by allowing women the right to own property

equally with men, allowed them almost equal citizenship with

men. This privilege became more unusual through the

centuries as other countries in Western Europe denied

property rights to women.

3

In the year 711, Muslims invaded Spain, conquering in

only seven years what had taken the Romans two centuries to

accomplish. However, these invaders had the advantage of

using all the accomplishments of the Romans and Visigoths:

roads, bridges, and a centralized government. They also had

the advantage of a disorganized opponent, the Visigothic

king Roderic having disappeared in one of the earliest

battles. The victor in that battle was Tariq ibn Ziyad, who

named the rock where he landed on the Iberian peninsula

after himself, Gibel al TariqΧnow known as the Rock of

Gibraltar.2

The Moors continued their advance through Spain,

conquering all of the territory except for the tiny kingdom

of Navarre. Their expansion stopped only when it met the

determined forces of Charles Martel at the battle of Tours

in October 732. By 740 the Muslim armies had been pushed

back south of the Pyrenees. Spain and Portugal are,

therefore, the only Western European countries to be

occupied for substantial lengths of time by a non-Christian,

non-Western, culture. Although the Moorish influence is now

seen as mostly beneficial with regard to education,

religious tolerance, and medicine, the Spanish Christians

were determined to take back their country. This crusade,

called the Reconquista, or Reconquest, was the most

4

influential event in shaping the society of Spain, and later

that of New Spain (Colonial Mexico).

After the Moors conquered almost all of the Iberian

Peninsula, a land they called Al-Andalus, they needed to

control it. In the years of invasion, this governing

structure changed frequently, with some governors lasting

only a few months. After 716, Córdoba became the capital of

Muslim Spain but internal strife continued. Military

leadership came primarily from Arabs, while most of the rank

and file soldiers were Berbers. The Arabs, who held the

Berbers in utter contempt, claimed all the best lands for

themselves, leaving only the poorest lands for their allies.

Arab leaders also fought among themselves, with different

emirs and governors competing for power. For example, in

756 Yusuf al-Fihiri, the governor of Al-Andalus, lost

Córdoba to Abd al-Rahman I, the leader of the exiled Umayyad

dynasty. Though Abd al-Rahman I governed well for thirty

years and managed to keep Charlemagne from seizing Al-

Andalus, the Berbers never acquiesced to his rule.3

Chaotic political conditions occasioned by Muslim

rulers quarreling among themselves allowed Christians to

begin the process of winning back what they considered to be

their country. Alfonso III, the Great, was the Christian

king of Asturia in the northern part of the Iberian

5

peninsula from 866 to 910. Alfonso III was both a good

military leader and a master of instigating rebellion within

the Muslim elite. After the battle of Polvaria in 878, he

won a truce with Muhammad I, who was primarily concerned

with putting down internal rebellions that challenged his

rule. Alfonso III thus established a stronghold for

Christian Spaniards from which to carry out the Reconquest.4

The strength of the Christian forces and the rivalry of

the Muslims at the beginning of the tenth century seemed to

foretell a quick victory for the former, but this was not to

be. Abd al-Rahman III, of the Umayyad dynasty, managed to

restore unity and establish the Caliphate of Córdoba in 929.

Under his rule, Córdoba became a great city, with almost a

quarter of a million people, as well as a center for

commerce and culture. Though Christians could not

effectively challenge his army, the Caliph did not try to

destroy them or their kingdoms, demanding only that they

respect the laws and pay their taxes. The death of Abd al-

Rahman III brought with it the demise of unity in Muslim

Spain. Decadence among the ruling class resulted in civil

war, the destruction of the caliphate, and the development

of approximately twenty-three small kingdoms, called taifas.

Unbridled rivalries among the taifas allowed the Christian

Alfonso V to join the kingdoms of Asturias, León, and later

6

Navarre, into an empire whose primary purpose was opposition

to Muslim rule. The Christians, though, were just as

divided as the Muslims, and could not take full advantage of

their triumphs. By 1035 the Reconquest was again

stalemated.5

Map 2. Spain in 1150

In the eleventh century, the Christian kingdoms of

Spain changed and grew. As more European influence came

into northern Spain, the kingdoms of Castile and Aragon

slowly emerged. These two kingdoms would quickly overshadow

the older kingdoms of León and Navarre and become preeminent

in the Reconquest. The kingdom of Castile in particular

adapted to the needs of frontier warfare and provided the

7

driving force that would eventually reunify Spain under

Christian rule. Castile=s responses to the exigencies of

the Reconquest became apparent as it conquered more and more

territory. The various rulers proclaimed changes in laws to

ensure the spread of Christian civilization in newly

conquered territory. For two centuries the Christians and

Muslims fought each other and themselves, resulting in many

impermanent changes and an overall balance of power.6

The period from 1212 to 1369 encompassed the most

productive part of the Reconquest, whereby Christians

recaptured almost all of the Iberian Peninsula. The battle

of Las Navas de Tolosa (1212) was a great defeat for the

Muslims, and for the next century and a half they were

divided by conspiracies, rebellions, and civil wars. As

Christians reconquered Spain, they established and

solidified their kingdoms. Castile expanded greatly as its

rulers conquered most of the remaining Muslim territory. By

the end of this era, the Muslims controlled only the kingdom

of Granada, and Castile was the most powerful of the

Christian kingdoms. Aragon, because of its ties with France

and its expansion abroad into the Italian peninsula, was the

second most powerful kingdom within Spain.7

This era also saw important changes in government. As

new areas came under Christian control, local governments

8

became important as a means of settling the conquered lands.

The local council, or cortes, emerged as a powerful

parliamentary assembly. Representatives from the three

estatesΧprelates, nobles, and townsmenΧcame together when

summoned by the king. The most important function of the

cortes was to consent to the king=s taxation, but it also

had a growing role in internal administration and foreign

relations. Power over the king=s pursestrings gave

parliamentary members the ability to safeguard their own

rights and privileges, and even to expand them.8

Towns, more so in Castile than in the other kingdoms,

remained relatively autonomous. Aristocrats ruled each town

and did not want to give up any of their power to the king,

nor did the townspeople wish to surrender any of their power

to a monarch. Even popular and respected kings would be

challenged when they infringed upon traditional rights of

nobles or towns. Alfonso X, widely respected as a man of

intelligence, discovered this attitude when he tried to

regularize the laws of Castile. He ordered that royal laws

be written and distributed so that all Castilians would know

their rights, but the nobles resisted to the point of

removing Alfonso from the throne. Alfonso X=s Fuero Real

encountered such great resistance, because the king was

trying to make laws equally applicable to all citizens

9

instead of being so favorable to the nobility. The same

aristocrats were usually members of the cortes and so had a

direct voice in opposition to the expansion of royal power.

Castilian men also banded together in informal brotherhood

associations, or hermandades, to defend their mutual

interests. All of these actions allowed Castilian cities

more freedom in enacting their own codes, many of which

increased the rights of women, as discussed below.9

The last phase of the Reconquest began in 1469 with the

marriage of Ferdinand of Aragon to Isabella of Castile. How

the marriage came about illustrates several aspects of

Spanish society during these years. Ferdinand was prince of

Aragon and King of Sicily. In 1469 he was seventeen years

old and seemingly embodied everything desirable in a prince.

He had been raised during a period of almost perpetual

warfare waged by his father, King Juan II. Ferdinand was

skilled in the arts of war, educated as befitted his

station, and singularly charming in person. He was

diplomatic, devious, and disarming. At the time of his

marriage, he had fathered two children out of wedlock. All

noble fathers in Europe who knew Ferdinand seemed to want

him to marry their daughters. Within Spain, especially,

rival factions wanted a marital alliance with the prince of

Aragon.10

10

Isabella=s role was much more complicated, and she had

to be both devious and determined to accomplish her goal of

marrying Ferdinand. Her half-brother, Henry IV, had ruled

Castile from 1454 to 1467. Henry was not a popular figure

in Castile: he discarded too many traditions, was too peace-

loving and licentious, and, worst of all, he had no heir.

His insubordinate nobility, in order to further discredit

him, spread rumors that he was homosexual, impotent, and

irreligious. Historians are in disagreement on whether

these accusations were true. Regardless, that his nobles

spread these rumors and accepted them as truth shows how

little they respected their king. Henry=s alleged daughter

by Juana of Portugal was commonly assumed to be the daughter

of Beltrán de la Cueva, the powerful duke of Alburquerque;

and so widespread was this belief that the daughter was

called Juana Αla Beltraneja.≅ The Castilian nobility took

advantage of the lack of leadership and started a civil war

aimed at promoting Isabella=s younger brother Alfonso as

king. Isabella was caught in the middle, with nobles on

both sides wanting her to join them. She finally announced

for her teenage brother when he and his nobles gave their

pledge to let her marry as she wished.11

Young Alfonso died suddenly, and mysteriously, in early

July of 1468Χallegedly as a result of eating a spoiled

11

trout. Rumors abounded, however, that he had been poisoned

by Juan Pacheco, Marqués de Villena, who wanted to start his

own dynasty. Pacheco had worked hard to convince Alfonso to

force Isabella to marry a prince from either Portugal or

France. He planned to have his own daughter marry either

Ferdinand of Aragon or Alfonso of Castile, whichever became

more powerful. When Alfonso proved to be resistant to

Pachecos=s plans, Ferdinand appeared a better candidate.

Pacheco then planned to have Isabella marry King Alfonso of

Portugal to soothe the rift caused by the scandal concerning

his daughter Juana. This Juana was the wife of Henry IV and

the mother of La Beltraneja. Her conduct at court was

licentious even to nobles accustomed to depravity. Another

of Isabella=s possible mates was Charles, Duke of Berry and

Guyenne, brother to King Louis XI of France. Another

possibility was England=s future Richard III. But Henry was

still king of Castile and he, in concert with Pacheco,

determined to marry Isabella to the elderly King Alfonso of

Portugal. Isabella kept her own counsel through these years

but politely refused to marry anyone.12

With her brother=s death, the dissident faction tried

to get Isabella to declare herself queen and continue the

war against Henry, but she refused to do so. Instead, she

wrote to the king and declared herself his heir presumptive.

12

This was a wise choice on her part, because Spanish society

was not likely to accept an unmarried queen as sole ruler.

Henry and the rebels reconciled, and Isabella=s marriage

became the subject of a power struggle between Pacheco and

Alfonso Carrillo de Acuña, Archbishop of Toledo. Carrillo

was instrumental in bringing together Isabella and her

choice of husband, Ferdinand, Prince of Aragon and King of

Sicily.13

The marriage itself could have been the subject of a

romantic novel instead of the grimly serious matter of

joining two kingdoms. Isabella had to act surreptitiously

because Henry was determined to have her marry the

Portuguese king. With the connivance of Carrillo, Isabella

sent letters to Ferdinand to find out if he would be willing

to join their kingdoms by matrimony. He was agreeable, and

once he had sent her a gold and ruby necklace as a pledge of

his intent, the couple secretly made plans to marry. More

letters sent secretly arranged their first meeting. In the

middle of the night of October 14, 1469, Ferdinand arrived

in Valladolid to meet Isabella. He had traveled in

disguise, acting as servant to his retainers. She was

eighteen, plump and pretty, with auburn hair and blue-green

eyes. He was seventeen, of medium height with dark-brown

hair and a charming smile. It was apparently love at first

13

sight, a love that would last a lifetime. They talked for

hours that first night, and made formal promises to wed.

Ferdinand left while it was still dark, only to arrive as

himself a few days later. Castilians enthusiastically

supported Ferdinand as the best husband for Isabella, and

the couple wed.14

The importance of that wedding, for the purposes of

this work, lies in the marriage contract that Isabella had

Ferdinand sign. Castile was a larger, more prominent, and

richer kingdom than Aragon, and Isabella was determined to

keep all her royal prerogatives intact. She insisted that

Ferdinand swear to obey the laws and customs of Castile, to

live in Castile, and not to leave the kingdom without her

knowledge. They would sign all decrees jointly and share

all titles equally. Ferdinand was a bit hesitant to accept

Isabella as an equal, but she promised to appear in public

as though she were ruled by him. She kept her promise. In

all their years together, Isabella always appeared to obey

Ferdinand=s decisions, and she insisted that he sign all

documents first, so that he appeared most powerful. Behind

the scenes, though, Isabella would use all her wiles to

persuade Ferdinand to her way of thinking, and she usually

got her way. Because of their contract, and the way they

followed it, Castilian laws and customs became the laws and

14

customs of all Spain, and soon, all Spanish territory in the

New World.15

The joining of the two most powerful kingdoms of Spain,

and their mutual desire to have all of Spain be as one

nation, one crown, and one faith led to the final defeat of

Muslim Granada, and later, the expulsion of Jews from Spain.

Ferdinand led the armies of Castile and Aragon against the

last Muslim kingdom of Granada, which fell in early 1492.

Ferdinand followed up military victories by instigating

internal revolt. In 1483 Ferdinand defeated Boabdil, who

had revolted against his father=s rule. Boabdil promised to

cooperate with Ferdinand but proved more of a liability than

an asset, alienating his relatives, being taken prisoner

repeatedly by different sides, and eventually fortifying

Granada against the Christians. Ferdinand and Isabella

besieged the city and finally starved the inhabitants into

capitulation in January 2, 1492. The Reconquest was over.16

15

Map 3. Spain in 1492

Several aspects of the centuries-long struggle had

great consequences for Spanish society. The Reconquest was

not the work of a national army, nor was it led by a single

king. Individuals led campaigns, and they became wealthy

through the booty and land acquired. Good warriors became

great captains, and great captains became high nobles. The

aristocracy was the military elite, and they held all

military power. Another important consideration was the

goal of spreading Christianity, the ostensible motivation

for the Reconquest. This linkage of warfare and religion

carried over into the conquest of the New World.

16

From the Reconquest came the idea that income derived

from conquest, not work. Gentlemen did not work for

material gain but enjoyed wealth as a result of plundering

from the infidel. And on the frontier, the only occupations

that were suitable for nobility were fighting and stock

raising, for these were the roles that came to be connected

with the military elites. Since there was little time

between battles to raise crops, military captains kept herds

of livestock on the frontier to feed their men. Thus,

ranching became linked with the military elites, who were

the aristocracy. Ranching, like warfare, was conducted on

horseback, and it became one of the few professions suitable

for a gentleman. At the same time, the aristocracy gained

great political power because of their private armies. As

mentioned, they did not fight under the king, nor for him.

They fought for themselves and for their own private gain.

These attitudes transferred easily to the conquest of the

New World in the sixteenth and seventeenth centuries.17

Farming, on the other hand, became the lot of

peasants. Land held no intrinsic value: wealth came from

warfare, not from land. Other European countries tended to

value land as the measure of wealth and limited land

ownership to the elite. Their laws, therefore, tended to

17

protect property rights, as opposed to Castillian laws aimed

at protecting the community.

A fourth innovation was the growth of towns. Since it

was too dangerous for people to live alone on the frontier

between Muslims and Christians, the latter especially banded

together and formed villages. Whenever one side won a

village from the other, the victors would encourage their

own people to immigrate to that settlement in order to

repopulate it and hold it against the enemy. Communities

developed as the frontier progressed, and each time the

frontier progressed, Spanish civilization grew. This spread

of Spanish society was an important goal of the Reconquest,

and laws would help enforce the Spanish ideas of what

constituted civilization.18

Throughout the Reconquest, men seized land from other

men, but women were needed to settle it and extend the

Spanish community to the new land. Newly won cities had to

be repopulated with Spanish people as the Moorish population

was killed, captured, or forced to move. Women, therefore,

were needed as colonists, wives of colonizers, mothers of

the next generation of defenders, and indispensable members

of the new Spanish communities. This spread of Spanish

civilization was an intrinsic part of the Reconquest. The

Moors not only had to be removed from the land, but Spanish

18

Christians had to move in to replace them. The land could

not be considered reconquered until Spanish communities

controlled the area. To induce people to move to the

hazardous new areas, a city would pass fueros (codes of

laws) that guaranteed property rights and justice under the

law. Significantly, to persuade single, respectable women

to come to the new territory and marry, and to persuade

married women to join their husbands in this dangerous area,

the codes protected and even expanded the rights of this

gender.19

The fueros regarding women encouraged and fostered

marriage, birthing children, and settled life in the cities.

Many women who lived in the cities were respected as

property-owning citizens, and maidens of landowning families

had great value as prizes for bachelor warriors whom the

citizens wished to have settle in the city. This

consideration did not mean that women were completely

independent, for they were not. The husband still

controlled the wife's property, but community pressures, and

the wife's family, apparently kept him from wasting it. The

wife was an important part of the family, and she shared in

all the financial gains and losses of the marriage. Since

most husbands fought in the wars of the Reconquest, they

were gone much of the time; therefore, it was up to the wife

19

to handle many the family's everyday responsibilities and

even financial transactions.20

Also, because of almost continuous fighting, there were

many widows on the Spanish frontier. These women had to

honor the memory of their deceased husbands for one year,

but after that they were encouraged to remarry. Remarriage

helped to repopulate the town, kept the widow from losing

her reputation, and placed her once more under the control

of a man. According to the mores of this society, all women

needed the protection and control of a man, whether father,

brother, or husband, and widows did not fit into the

pattern. Therefore, there was great incentive and peer

pressure for the widow to reenter normal society by

remarrying.21

Married women, especially when their husbands were

absent, filled important and respectable roles in community

life. They presided over bakeries, bathhouses, washing

places at the river, and other traditional occupations such

as spinning and weaving. If disputes occurred in these

areas, as they often did given the volatility of Spanish

temperaments, women served as witnesses for the frequent

lawsuits that resulted. Women also witnessed land sales,

arraignments, and other legal matters; and they had to pay

taxes if they were the head of household. They could sue

20

and be sued on their own, meaning that their husbands did

not have to be parties to the suits, and they were

responsible for the actions of their children and

servants.22

Women, mostly married women and widows, held

respectable jobs. They might serve as domestic servants, as

wet nurses (who were especially held in high esteem), or as

shopkeepers. Other married women worked alongside their

husbands in shops and in various occupations. A slightly

less respectable occupation was the job of barmaid. Widows

often kept up their husband's shop or profession after he

died, and if they remarried their new husband would have a

ready-made career.23

All of these examples show that women were an important

part of frontier society, necessary to the continuance and

expansion of the Spanish community. Their property rights

increased as various city councils lured them to settle

within the village boundaries. Their increased legal rights

were guaranteed by the city codes, and the pioneer women

passed these rights on to their daughters and

granddaughters. Eventually these expanded rights became

traditional, an ingrained part of Castilian culture.

Although respectable Castilian women usually were not

totally independent of the protection of a man, they had

21

many more legal rights than women in other European

societies. Castilian women were not totally subservient to

their men, for women had the right to own property, and this

right was the basis for all other civic freedoms.

The law ensured that Castilian women would be able to

take care of their own rights in the event of widowhood.

Women were much too valuable in the effort to repopulate and

civilize the newly reconquered areas to be relegated totally

to a subservient, helpless position. Since the men were

often absent during warfare, women had to be capable of

carrying on the family=s affairs. This capability spread to

other areas of feminine jurisdiction, and females were the

equals of males in these areas. It was this ability, this

accumulation of rights passed down through generations of

Castilian women, that was so important to the settlement of

the frontier in the New World.

22

ENDNOTES FOR CHAPTER 1

1. The Visigothic Code (Forum Judicum). Trans. and ed. by S.

P. Scott (Littleton, CO: Fred B. Rothman & Co., 1982), 120-

123; Derek W. Lomax, The Reconquest of Spain (London:

Longman, 1978), 10-24.

2. Joseph F. O=Callaghan, A History of Medieval Spain

(Ithaca, NY: Cornell University Press, 1975), 52-53; Lomax,

Reconquest, 21-24.

3. O=Callaghan, History, 93-101; Lomax, Reconquest, 25-34.

See also Roger Collins, The Arab Conquest of Spain: 710-797

(New York: Basil Blackwell, 1989).

4. O=Callaghan, History, 100-115; Lomax, Reconquest, 35-40.

5. O=Callaghan, History, 116-190; Lomax, Reconquest, 41-67;

Roger Collins, Early Medieval Spain; Unity in Diversity,

400-1000 ) New York: St. Martin=s Press, 1983), 183-224.

6. O=Callaghan, History, 193-330; Lomax, Reconquest, 68-128;

Collins, Early Medieval Spain, 225-253.

23

7. O=Callaghan, History, 333-427; Lomax, Reconquest, 129-

166.

8. O=Callaghan, History, 435-445. See also J. N. Hillgarth,

Precarious Balance, 1250-1410, vol. 1 of The Spanish

Kingdoms, 1250-1516 (2 vols.; Oxford: Clarendon Press,

1976).

9. O=Callaghan, History, 445-449; Lomax, Reconquest, 161-

166.

10. Peggy Liss, Isabel the Queen: Life and Times (New York:

Oxford University Press, 1992), 75-78; Stanley G. Payne, A

History of Spain and Portugal, (2 vols.; Madison: University

of Wisconsin Press, 1973), 1: 170-172.

11. Liss, Isabel, 57-64; Payne, History of Spain, 171-172;

Townsend Miller, The Castles and the Crown, Spain: 1451-1555

(New York: Coward-McCann, Inc., 1963), 30-50.

12. Liss, Isabel, 65-67; Miller, Castles, 50-56; Irwin R.

Blacker, ed., Prescott=s Histories; The Rise and Decline of

the Spanish Empire (New York: The Viking Press, 1963), 21-

24.

13. Liss, Isabel, 67-75; Blacker, Prescott, 24-28.

24

14. Liss, Isabel, 65-80; Blacker, Prescott, 24-30; Miller,

Castles, 56-63.

15. Liss, Isabel, 78-80; Blacker, Prescott, 25.

16. O=Callaghan, History, 657-669; Lomax, Reconquest, 167-

178.

17. Payne, History of Spain, 1: 77.

18. Thomas F. Glick, From Muslim Fortress to Christian

Castle: Social and Cultural Changes in Medieval Spain (New

York: Manchester University Press, 1995), 125-177.

19. Heath Dillard, Daughters of the Reconquest: Women in

Castilian Town Society, 1100-1300 (New York: Cambridge

University Press, 1984), 12, 16.

20. Ibid., 26, 76, 78, 94.

21. Ibid., 98.

22. Ibid., 149-150.

23. Ibid., 156-161.

24

CHAPTER 2

LAS SIETE PARTIDAS

One of the beneficial effects of the long period of

Islamic cultural influence was the emphasis on learning that

filtered into medieval Christian minds. The twelfth and

thirteenth centuries were the height of cultural

transmission of Islamic knowledge to Christian cultures, as

reflected in the translations of Islamic documents made in

Toledo. During this time, Spanish kings had more available

income derived from lands acquired by their own conquests,

and they came to enjoy scholarship and the arts. The

revival of Roman law made intellectuals aware of the

disorganized state of Spanish law, and, as a result,

differing regions such as Aragon and Navarre codified their

laws. However, the greatest intellectual undertaking of

that time was the codification and unification of diverse

Castilian law under King Alfonso X (1254-1286).1

In 1256 Alfonso X, known as Αel sabio,≅ or Αthe

learned,≅ ordered the reorganization of the laws of Castile.

The first book of laws, the Fueros Reales or Royal Laws, did

not cover a wide enough expanse, so Alfonso dictated that a

25

work encompassing the whole of law be compiled. The actual

compilers are not known but may have included Alfonso

himself. The sources consulted were so vast and the

authorities cited so numerous that it took more than ten

years for many scholars to complete the task. When finally

finished, this compilation proved to be one of the great

works in the history of law. It portrayed Αa rational

system of universal justice under central monarchy and [was]

the first great didactic literary classic in the Castilian

vernacular.≅2

Las Siete Partidas, or Seven Divisions of Law, is so

named because it is divided into seven parts. It draws

heavily from Roman law, but it also contains canon law,

maritime law, Visigothic law, and the customs and fueros of

the various Spanish cities. It cites both Scriptures and

the writings of saints as authorities. Though it was written

at a time of much Moorish influence, it does not cite many

Islamic sources, because of Christian attitudes toward

Muslims during the Reconquest.3

The Partidas covered every known aspect of law, from

the role of the king to appropriate candidates for a

mistress, with rationale given for each. Even at this time,

the Spanish were exceptionally litigious, as evidenced by

the number of lawsuits recorded, so the compilers of the

26

Partidas went into great detail to try to cover every

possible contingency. This attempt was also aimed at

unifying laws throughout Castile. Each town had its own

code of laws, many of which were contradictory, not only

with other towns but within the code itself. The Partidas

were not intended to overthrow these laws, but to give the

towns an example that they could copy in rewriting their own

laws in the manner of the Partidas.4

The Partidas gave great power and responsibility to a

paternalistic, benevolent king. The various political

powers, both the aristocracy and townspeople, opposed the

concept of a powerful monarch, as expressed in the Partidas,

because it took away many of their traditional rights. They

would eventually use this supposed usurpation as a

justification to depose Alfonso. For his part, Alfonso had

never intended for this code of laws to become effective

immediately as the law of the land, for even the king

himself saw that it was too visionary for that time. He

did, however, intend that it would eventually become the law

of the land, as people became accustomed to its ideas. That

was precisely what happened.5

The Partidas was written in the newly standardized

Castilian vernacular, so schools and universities used its

text in teaching grammar and vocabulary for the next three

27

centuries. Since its laws also explained the philosophy

behind each law, it was used in philosophy, as well as law

classes. Because so many of the upper classes went to the

universities to obtain their education, they came to regard

the law as expressed in the Partidas as the true law.

Likewise, men who became the bureaucrats and courtiers read

and studied these laws. The ideas contained within the

Partidas also touched the middle and lower classes as they

came into legal situations, which judges resolved on the

basis of these codes. Its precepts thus gradually filtered

into the minds of all the people. The law as seen in the

Partidas became the traditional law as the people knew it,

and an examination of these laws that pertained to women

provides insight into how Spaniards regarded the role of

women in society.6

The division of Las Siete Partidas into seven parts is

not logical to our modern minds. The compilers apparently

used seven parts in order to honor Alfonso, because the

first letter of the introduction to each section spells out

his name.7 The first part deals with canon law, and with

laws in general, the second part with government and

administration, and the third part with procedure and

property. These last two areas are usually dealt with

separately in modern American jurisprudence, as each covers

28

an enormous area of case law. The fourth part treats

domestic relations, and the fifth deals with obligations and

maritime law. Again, these two areas are usually separated

in American jurisprudence. The sixth part covers wills and

inheritances, and guardianships, and the seventh discusses

crime and general principles of law. Again, two separate

bodies of law are joined in one part, but perhaps a bit more

logically, for the modern mind can readily associate crime

with the practice of law.8

The main impression a reader receives from the Partidas

is the extraordinary detail with which each area is covered.

As in Roman law, the compilers evidently tried to think of

every single possibility for each situation and decide the

legal consequences in each case. This approach aimed at

providing stability to Castilian society, because everyone

would know, through custom and usage, their own rights and

responsibilities. This understanding was important, for the

Castilians were litigious by nature and brought lawsuits at

the least excuse instead of settling slights by combat, as

in other European societies. Castilian society was so

litigious, with virtually everyone knowing the rules, and

this attitude so pervasive, that even royalty had to follow

the dictates of law. Neither kings nor emperors could grant

royal concessions that were contrary to law, nor could they

29

deprive people of their property without following proper

procedure or giving due compensation. This adherence to law

by the highest nobility is all the more remarkable when

compared to the attitudes of the absolute monarchs of later

European countries.9

Women were well protected in Castilian society,

although their legal status both guarded and limited their

actions. The law protected women from conniving and

unscrupulous men, as well as from their own presumed

feminine weaknesses. For example, a general limitation and

protection presumed that women had little contact with the

business world. Therefore, they could not be held to their

contracts, if those contracts turned out to be against their

best interests. Exceptions could be made if the woman

wanted to be able to do business. Their legal rights and

responsibilities were carefully delineated in the Partidas,

and the detailed explanations as to why certain limits

applied to women gives the reader a clear view of a woman's

place in medieval Castilian society. As noted, the Partidas

were not arranged in logical or systematic order.

Therefore, various aspects of law regarding women will be

discussed in this paper, not by their arrangement in the

actual work, but by their modern classification in

contemporary American jurisprudence. These classifications

30

are the legal capacity of women: their ability to make

contracts, hold property, sue and be sued for torts, their

domestic relations, and their liability for criminal

actions. The first four topics will be discussed in this

chapter, the last two in the following chapter.

In the Partidas, women held almost the same legal

capacity with men but with several important limitations.

For example, though judges usually did not want women to be

in their courtroom, women could be, and often were,

witnesses to a lawsuit. Their testimony was as fully

credible as a man's, but as a protection for her reputation,

a woman could not be summoned to make an appearance in

court. Instead, the judge himself was required to go to the

woman's house to take her deposition, or to send a notary to

do it. If a woman was a party to a civil suit, she should

send an attorney to represent her instead of appearing in

court. The rationale for these rules held that it was not

proper for women to mingle publicly with men. However, if

the woman was accused in a criminal case, she did have to

appear in court.10

For similar reasons, a woman could not be an advocate

for anyone. Part III, Title VI, Law III of Las Siete

Partidas reads,

31

No woman, however learned she may be, can act as an

advocate for others in court. There are two reasons

for this; first, because it is neither proper nor

honorable for a woman to assume masculine duties,

mingling publicly with men . . . [a]nd, moreover, when

women lose their modesty it is a difficult matter to

listen to them and dispute with them.11

Another reason for restricting circumstances under

which women could appear in court is given in the law

itself. In ancient times, a woman named Calpurnia was very

learned. She would act as an advocate for others and was so

learned that the judges could not overcome her arguments,

whereby she would prevail over male advocates. This

prospect, in a male-dominated society, was so unseemly that

the compilers of the Partidas acted to prevent such a

circumstance from ever happening again.12

Although women could never act as advocates for others,

under special circumstances they could act as sureties for

others, even though they could not be compelled to do so. A

surety is generally defined as a person who stands liable

for another's obligations, if the primary debtor does not

repay the debt. The general rule barred women from acting

as sureties for other parties, Αfor it would not be proper

for women to go into court . . . and be compelled to resort

32

to places where many men are assembled, and to do things

which might be contrary to chastity.≅ There were, however,

seven exceptions to this rule. These exceptions deal with

areas normally associated with women's roles in society, and

with the circumstances where it could be shown that the

woman in question knew what she was doing. A woman could be

surety for the amount needed to free a slave. She could be

surety for another woman's dowry. If she wished, she could

renounce the laws that protected her and become a surety,

bound by all the laws that bound men. If she received

compensation, this proved that she understood the

consequences of her actions, and she could be held liable as

a surety. A woman could be surety for her own acts, and for

a person from whom she was expected to inherit. Lastly, if

she fraudulently dressed like a man and deceived others into

thinking she was a man, she could be held to her suretyship.

In this circumstance, she would have to pay what she had

guaranteed for another, because the protection was given to

women not so they could defraud others, Αbut on account of

their artlessness and their natural weakness.≅13

Despite their Αartlessness≅ and Αnatural weakness,≅

women did have legal power to act for others under specific

circumstances. If a widow petitioned the king and

officially waived all laws that protected her, she could be

33

named legal guardian for her own children. However, if she

remarried, the children had to be taken from her and given

to their nearest respectable relative. The rationale given

for this is that the widow would have so much affection for

her new husband that she would neglect her children, or

perhaps even injure them. If she mismanaged her children's

property while she was guardian, she could be held liable

for it. Another example of a woman's legal capacity to be

responsible for others is that, under special circumstances,

she could adopt an heir. The general rule was that a woman

could not adopt children, since it was assumed that she, if

she were of suitable age, would be able to bear her own.

But if a woman lost a son in battle, and the king consented,

she could adopt another son to replace her loss.14

Women of good character could be effective witnesses in

legal battles, for their testimony carried the same weight

as that of men. One restriction to this law was that a

woman could not testify in favor of her husband, but then

neither could the husband testify in favor of his wife. The

same restriction applied to a brother testifying for his

brother. This limitation was not, then, actually based on

gender, but on relationship. The other exception to a

woman's full capacity to act as a witness was gender-based,

and this pertained to wills. Women could not be witnesses

34

to a will. However, and this shows the detail with which

these laws were drafted, if a person had the characteristics

of both sexes, but was more similar to a man than to a

woman, this person could indeed witness a will.15

Though judges held enormous power in Castilian society,

the rights of women were expressly protected from

magistrates by law. Women held a special exemption from

being summoned to appear before a judge who wished to marry

her without her consent, either to himself or to another.

Neither could the judge summon the woman to his chambers to

have his way with her, nor to use force of any kind upon

her. If this happened, neither she nor any member of her

family ever had to appear before that judge, and anyone who

wished to make a complaint against her or her family had to

take it to a different court. All appeals from widows and

orphans went directly to the king, because he was required

by law to protect those who needed him most.16

Legal capacity could be lost in various ways. Marriage

put many woman's legal rights in abeyance for the duration

of the marriage. For instance, a married woman could not

accuse anyone of a crime, except that of treason. The same

restriction applied to minors, persons with a bad reputation

or who had been proven to be false accusers, the very poor,

and criminals. Treason was again the sole exception,

35

because it was such a serious crime that anyone, even a

slave or a married woman, could accuse a person of that

offense. In civil cases, likewise, anyone who suspected

guardians of mismanaging their ward's property could accuse

them and bring him or her to justice. Mothers,

grandmothers, sisters, and nurses, any one of whom could be

a married woman, had the obligation to bring such an

accusation on behalf of the children.17

If a woman lost her good reputation, she lost most of

her legal rights. For example, it was considered improper

for a widow to remarry within a year of her husband's death.

Such action might cast doubt on the parentage of any

children born during her widowhood or soon after the second

marriage, and it also might raise suspicion that the widow

had killed her first husband in order to marry the second.

Such a woman could not inherit from anyone other than her

immediate family. As discussed above, any widow, even one

of good reputation, who remarried lost guardianship of her

own children. The children might actually remain in her

custody, especially if they were less than three years old,

but a different relative would be responsible for the

protection of the children's property.18

The most common way for a woman to lose her reputation

was to be involved in an extramarital affair. Even the

36

suspicion of involvement was enough in some cases for the

woman to become infamous. ΑInfamous≅ was the legal term

used to denote people who had lost their good reputation,

their credibility, their honor, and their standing in the

community. For example, men could become infamous if they

fought wild beasts, or sang, or jested for money, but not if

they performed these entertainments for free. The law

listed several ways for a woman to become infamous. A woman

who was found in a place where she had committed adultery,

or had committed Αa wickedness with her body≅ less than a

year after her husband's death, was considered to be

infamous. Women who acted as procuresses, or who kept

Αslaves or free women in her house inducing them to commit

wickedness with their bodies for money,≅ were infamous,

though they themselves might commit no wickedness

personally. Women did not have to charge for their

entertainments, as was the case with men, in order to lose

their standing in society, but that did remove all doubt as

to the state of their reputations.19

Certain legal presumptions limited the extent of a

woman's rights. When twins were born, one male and one

female, the male was presumed to have been born first, so

that, if applicable, he could inherit exclusively. Since

under Castilian law all legitimate children inherited a

37

portion of the parent's estate, this presumption applies

only to certain entailed properties. When a husband and

wife died in a common accident, such as a shipwreck, the

wife was presumed to have died first, because of her being

naturally weaker. This cleared the way for the husband's

heirs to inherit first. But legal presumptions could act

protectively, too. The sons of traitors could not inherit

from either parent, because of the legal presumption that

they would have been involved in the treason, but daughters

could inherit from their mothers, because Αno man should

presume that women will commit treason.≅20

Married women generally did not make contracts, but

they could if they renounced all protective laws in their

favor. Widows had little restriction on their power to make

contracts. There was an explicit form that defined how a

contract should be drawn, and the contract had to have the

wife's consent to a sale of either her property controlled

by the husband, or of property owned by both spouses. The

wife had to verify that she released all her rights to the

property and bound herself to abide by the sale made by her

husband. There was also a form whereby a man agreed to give

his daughter in marriage, guaranteeing the dowry as well as

the daughter's consent, but the daughter was not a party to

this actual contract. However, a man and a woman could make

38

a contract to marry, and in some cases that sufficed for the

formal union. There were also forms for dowries and gifts

from wives to husbands, and the wife was bound by the

contract.21

Women could and did hold property in their own names.

The distinction for women was not so much between real and

personal property, though there were many laws referring to

movables, as between dotal and paraphernal property. Dotal

property was that which the wife brought to the marriage,

i.e., her dowry. Paraphernal property was all her property

not included in the dowry, i.e., her separate property.

Publicly the husband controlled all the property owned by

both, but the wife could legally enjoin him not to waste her

portion, and she had to officially consent to all sales of

her own or commonly owned property.22

The wife could even control the husband's property,

though under very limited circumstances. Usually a wife had

to have her husband's consent before she could give alms to

the poor, go on a pilgrimage, or fast. If she had her own

property, though, she could give alms from it and also from

any of the husband's property that was normally under the

control of women, e.g., food in the kitchen. A wife could

therefore give bread to the poor, even though it actually

belonged to the husband, but it had to be only a reasonable

39

amount. If she saw a poor person and thought that her

husband would want to give him some money, she could do

that, too, though she was not obligated to do so if she

thought the husband would beat her for doing it. Lastly, if

she saw a person in such straits that if he was not given

alms immediately he would die, she could give him alms out

of her husband's property, even if he had strictly forbidden

it.23

The compilers of the Partidas showed their concern for

women's property rights by including several protections for

women and their property. A married woman could not usually

lose her property through abandonment, because the husband

was presumed to be in control, and his lack of judgment

should not prejudice her rights. If, however, the property

was part of her dowry and the marriage was dissolved, then

she would be in control of her own property and could lose

it through abandoning it for a long enough period of time.

Also, if her husband was an obvious spendthrift and she did

not go to court to demand the return of her dowry, then she

was held to have acquiesced in its loss and could not later

regain the property.24

The only bar to a woman inheriting was a poor

reputation, and even then she could still inherit from her

immediate family. When the husband died, and before his

40

estate was distributed, the dowry of the wife was repaid to

her, for it was not considered part of the husband's

property. When a rich man married a poor woman, she could

receive one quarter of his estate as her share, but not if

she owned enough property to support herself.25

Sometimes the reasons for the protection of women are

obvious in the laws, as when they spelled out the possible

actions of the men within their families. A woman, who made

a gift to her son after the death of her husband and then

married another man, could revoke the gift for ingratitude.

The possible grounds given were if the son tried to cause

her death, if he did violence to her, or if he caused her to

lose her property. But again, if she lost her good

reputation, she lost her legal rights. A woman who

remarried within a year of her husband's death forfeited any

property the husband had given or bequeathed to her.26

Women could, under special circumstances, claim assets

of the property of others. When a mother or grandmother had

the property of children or grandchildren under her

guardianship, and the children had sufficient property for

their own support, the mother or grandmother could deduct

her expenses from their property. If the children had no

property, the mother or grandmother had to care for them out

of the goodness of her heart, and could not collect

41

expenses. If the woman did not control the property of the

children, the children had to state publicly that they

wished her expenses to be paid. This law made no provision

for the marital status of the woman in question. It was

possible for the husband to be declared a spendthrift or

otherwise incapable of handling the family money, in which

case the wife was the most likely candidate to take over the

family finances.27

There is very little information on women's capability

to commit or be held liable for torts. Apparently the man

who had authority over the woman, whether father, husband,

or other, in most cases took full responsibility for her

actions. The Castilians were very concerned about honor and

dishonor, and the Partidas held that anyone, male or female,

over the age of ten and a half years was capable of causing

dishonor. Deliberately causing dishonor was an actionable

offense, which meant that a suit could be brought in court

for damages. The law states that a husband had the right to

sue someone for dishonoring his wife, as could a father-in-

law for the dishonoring of his daughter-in-law. This makes

it appear that these dishonored women could not sue on their

own. The circumstances are not clear, however, for a

defense to a suit of this sort was that the good woman had

dressed as a bad woman and gone to places frequented by such

42

women. In this case she was at fault and could not sue for

being dishonored, so perhaps she did have the right to sue

in her own name under ordinary circumstances. Under this

construction, those men under whose control she lived could

sue also, or if she declined to bring her own suit, for the

dishonor would spread to the whole family.28

A husband could not sue his wife for larceny, but he

could sue anyone who assisted her in her larcenous actions

against him and get compensation from them. He was also

allowed to punish his wife so that she would not be tempted

to steal from him again. This particular law made no

mention of whether the wife could sue the husband for

stealing from her, but in other places the wife had the

power to enjoin the husband from destroying or wasting her

property. A wife could not accuse her husband of adultery,

because in Castilian society no injury or dishonor accrued

to her. In more modern words: Αno harm, no foul.≅ Since

she could not prove damages, she could not bring suit.29

Castilian women, for the most part, had almost equal

legal status with men. By contrast, this was not the case

in other parts of Europe, especially in England and those

nations, such as the United States, that adopted English

common law. As will be demonstrated in later chapters,

English common law severely restricted the rights of married

43

women. By law wives= legal identities were submerged into

their husbands: she had no legal existence apart from him.30

Under the ideals of the laws of the Partidas, women had

almost full legal capacity. Women could make contracts, and

be held to them. They could own both real and personal

property. Buying and selling of property by women was

common, as evidenced by the presence of forms for these

transactions. Castilian women could sue and be sued for

torts, though apparently married women usually let their

husbands handle these matters. Women were valuable members

of the community. Their testimony was trusted and fully

admissible in court. By law, and in marked contrast to the

rest of Western Europe, there was very little these women

could not do.

44

ENDNOTES FOR CHAPTER 2

1. Stanley G. Payne, A History of Spain and Portugal (2

vols., Madison: University of Wisconsin Press, 1973), 1:78-

80.

2. Ibid., 1:80; Juan Beneyto Pérez, ΑThe Science of Law in

the Spain of the Catholic Kings,≅ in Roger Highfield, ed.

Spain in the Fifteenth Century 1369-1516: Essays and

Extracts by Historians of Spain, translated by Frances M.

López-Morillas (New York: Harper and Row, 1972), 290.

3. Evelyn S. Procter, Alfonso X of Castile: Patron of

Literature and Learning (Oxford: The Clarendon Press, 1951),

64.

4. Ibid., 49-50.

5. Ibid., 51, 57-60; Payne, History, 1:80-81.

6. Las Siete Partidas, translation and notes by Samuel

Parsons Scott (New York: Commerce Clearing House, 1931),

xlix-lv; Procter, Alfonso X, 51.

7. A servivio a Dios La fé Catolica

45

Fizo nuestro Señor Onras señaladas Nascen entre Sesudamente Olvidanza

from the introduction to each part of the Partidas.

8. Scott, Partidas, lviii-lix.

9. Partidas, Part 3, Title 18, Law 30; Part 2, Title 1, Law

2.

10. Ibid., Part 3, Title 7, Law 3.

11. Ibid., Part 3, Title 4, Law 3.

12. Ibid.

13. Ibid., Part 5, Title 12, Law 2; Part 5, Title 12, Law 3.

14. Ibid., Part 6, Title 16, Laws 5, 4; Part 4, Title 16,

Law 2.

15. Ibid., Part 3, Title 16, Laws 1, 17.

16. Ibid., Part 3, Title 7, Law 6; Part 3, Title 23, Law 20.

17. Ibid., Part 7, Title 1, Law 2; Part 6, Title 18, Law 2.

18. Ibid., Part 6, Title 3, Law 5; Part 6, Title 16, Law 5.

19. Ibid., Part 7, Title 6, Laws 3, 4.

46

20. Ibid., Part 7, Title 33, Law 12; Part 6, Title 2, Law 2.

21. Ibid., Part 3, Title 18, Laws 58, 84, 85, 86.

22. Ibid., Part 4, Title 11, Laws 7, 17, 29; Part 3, Title

2, Law 5; Part 3, Title 18, Law 58.

23. Ibid., Part 1, Title 23, Law 12,

24. Ibid., Part 3, Title 29, Law 8.

25. Ibid., Part 5, Title 13, Law 34; Part 6, Title 13, Law

8.

26. Ibid., Part 5, Title 4, Law 10; Part 4, Title 12, Law 3.

27. Ibid., Part 5, Title 12, Law 36.

28. Ibid., Part 7, Title 9, Laws 8, 9, 18.

29. Ibid., Part 7, Title 14, Law 4; Part 3, Title 2, Law 5;

Part 7, Title 17, Law 1.

30. Mari J. Matsuda, ΑThe West and the Legal Status of

Women: Explanations of Frontier Feminism,≅ Journal of the

West 24 (January 1985): 47-48.

47

CHAPTER 3

DOMESTIC RELATIONS IN THE PARTIDAS

Las Siete Partidas was extremely detailed. The writers

of the laws wanted to cover every possible contingency so

that when a case came to trial, the law would be clear. All

the judge had to do was find out the facts of a situation

and apply the correct law. The Castilians knew their rights

and sued often to enforce them, so intricate laws, written

in advance, were beneficial to the court officials. This

chapter will examine the laws specifically written to

control behavior within the family. This aspect of law is

often called domestic relations. Later chapters will show

how these domestic relations laws became ingrained in

Castilian culture and were transferred to the New World,

ending up as part of the Texas legal system.

Part four of the Partidas deals in its entirety with

domestic relations. There were many detailed laws on the

subject of marriage: what constituted a valid marriage; what

could annul a marriage; what causes justified a separation

or divorce; and what rights married people had in relation

to each other and also to those outside the marriage. There

48

were even laws concerning which women could be kept as

honorable concubines without benefit of marriage, as well as

the rights of concubines.

Castilian society expected women to marry. The only

way for a woman to gain honor and dignity was through her

husband. A daughter who married a count, thereby becoming

a countess, gained much prestige for her family, so most

families urged good marriages on their daughters. A father

could disinherit a daughter who refused to be married and

went to live instead in a brothel, unless he himself delayed

the daughter's marriage until she was twenty-five. If that

happened, then it was his fault that she was unwed and he

could not disinherit her.1

Unlike the law in England, under Castilian law parents

could not betroth a daughter when she was not present or

without her consent. The informed consent of both bride and

groom was absolutely necessary to have a valid marriage. A

marriage contracted through force or intimidation of the

bride could be annulled by the wronged party, though a woman

could validate it if she so desired. It was always

necessary to have the consent of the woman's family. A man

who married a woman without the consent of her family was

placed, along with all of his property, in the power of her

49

nearest relatives, whose only constraint was that they might

not kill or severely injure him.2

Marriage had to be contracted in good faith by both

parties. In most cases, each party to a contract must

provide some form of consideration (payment) for the

contract to be valid. A dowry was the contractual

consideration on the part of the woman that made the

marriage contract legally binding. If a woman knew that she

could not legally marry a certain man, but nonetheless gave

him a dowry, he was not bound by the marriage even though he

had accepted the dowry. Because she had not acted in good

faith, he did not even have to return the dowry. If both

parties knew they could not marry, even though they gave

each other gifts for the marriage, the marriage did not

exist and the property was forfeited to the crown.

Addressing the ultimate act of bad faith, men who killed

their wives for no reason were not allowed to remarry.3

A marriage had to be between two people who were

physically suited to each other so that the marriage would

produce children. If a woman married a man but she was so

formed that she could not have conjugal relations with him,

then the marriage would be annulled and each would be free

to remarry. However, if she remarried and was able to have

carnal relations with the second husband, then she was to be

50

removed from the second husband and returned to the first,

because the physical impediment had obviously been removed.

But, if both men were examined and the first husband was so

endowed that she would still not be able to have relations

with him though she could with the second husband, she could

remain with the second husband. Another cause for annulment

was the impotence or Αcold disposition≅ of the husband that

made it unlikely that children would be born to him. In

either case, the wife could file for annulment so that she

might marry a man who would give her children.4

A husband could obtain a divorce from his wife if she

was proven to be an adulteress, but the wife could not sue

on account of the husband's adultery. Adultery as a crime

was defined as when a man had relations with a woman who was

married or betrothed to another. The man's marital status

was immaterial. The husband was dishonored through his

wife's adultery, because it might lead to a child of another

man being declared heir to the husband. As mentioned, the

woman was not perceived as suffering any dishonor through

her husband's relations with another woman, so she was not

entitled to sue. A husband could pardon his wife's adultery

by continuing to live with her after she promised to reform

her behavior, but if she continued her evil ways, he, and

her other male relatives, were obligated to report her to

51

the local government. Otherwise, they would be condoning a

mortal sin. There was one protection for a fallen woman. If

her husband separated from her for her adultery and then

committed the deed himself, she could compel him to return

to the marriage.5

Most marriages ended with the death of one of the

spouses. As mentioned above, the husband's estate did not

include the wife's dowry, her paraphernal property which was

non-dower property brought into the marriage, or any of her

separate property. These would be returned to the wife

before any partition of the husband's estate. There were

many regulations about wills, stating who could be an heir,

who could receive bequests, the proper forms of wills, and

so on. If a valid will existed, it controlled the

distribution of the estate. If the husband died intestate,

laws governed the distribution of his property. These laws

varied according to the status of the people involved. In

the unusual event that a rich man married a poor woman, she

could claim up to one quarter of his estate for her

maintenance. If she had her own property, however, she

could not make this claim. Apparently, in Castile, as

elsewhere, marriages usually took place between people of

roughly equal social and economic status.6

52

Unless specific action was taken before the death of

the spouse, each child would share in the estate, with the

eldest son being the main heir. Daughters inherited as well

as sons, though if the daughters had already married, their

dowry might be subtracted from their share of the estate.

If the wife was, or claimed to be, pregnant when the husband

died, no distribution could take place until the child was

born, or it was proved she was not pregnant.7

Stringent precautions were taken when a woman claimed

to be pregnant at the time of her husband's death, in order

to ensure that the child was truly the issue of the

deceased. First, trusted women of good reputation examined

the widow to see if she was pregnant at the time of his

death. If she was, she was closely guarded until she gave

birth in front of reputable witnesses, none of whom was

allowed to be pregnant. All doors would be locked and

guarded during the birth and no visitors carrying packages

would be allowed to enter. If the woman refused to accept

these precautions, her child would not inherit unless she

could prove conclusively that it belonged to her late

husband.8

The parentage of children was extremely important to

the Castilians. Just as there were laws to ensure that

posthumous babies really were the children of the deceased

53

husband, there were laws to prevent the unintentional

disinheriting of offspring:

Women sometimes become so greatly enraged that,

through the anger which they entertain against

their husbands, they declare that their unborn

children, or those who are already born, do not

belong to their husbands, but to others . . . the

said child should not be disinherited, or its

rights prejudiced in any way, by speeches of this

kind.9

On the other hand, women who fraudulently declared the

children of others to be their own were guilty of deceit,

and the husband and the other heirs could take her to court

so that the substituted child would not inherit. Women on

the whole, though, were expected to be rational, responsible

people, especially when it came to the care of their

children. Mothers were in sole control of children less

than three years of age, after which they were given to the

care of their fathers.10

As mentioned, widows were expected to honor the memory

of their deceased husbands for at least one year. Those who

remarried within this time lost their good reputation, as

well as anything they inherited from their first spouse.

But there is no indication of any specific length of time

54

that men were supposed to remain unmarried following the

death of their wives. Apparently, widowers remarried

quickly, especially if there were small children in the

household, so that babies could be nurtured by a woman.11

Men who could not find a suitable wife did not have to

live alone. Concubinage was an integral part of Castilian

society and the concubines, while not as respected as wives,

had rights, too. A man could take any free woman as a

concubine except those who were virginal, a girl less than

twelve years of age, or a widow of good reputation. If he

wanted a widow of good reputation to be his concubine, he

must state publicly that this was his intention, or people

would assume that the woman was his wife. A man could only

have one concubine at a time, and she must be of such

character that he could marry her if he wanted to, i.e., she

must not be closely related to him, or married to another.

Although concubines did not personally have the security of

status as wife, their children could inherit both from them

and from their natural father. Also, there was always the

possibility that the man might decide to marry the concubine

after all. In this case, their children would become fully

legitimate, and the former mistress would have all the

rights and prerogatives of any other wife.12

55

Family was so important to the Castilians that there

were several laws concerning the various levels of

legitimacy and inheritability of heirs. At the lowest level

of illegitimacy were those children Αbegotten contrary to

law, and in opposition to natural order.≅ These children

were those resulting from incestuous unions, those born to

women in religious orders, the fruit of adultery, or those

whose fathers could not be ascertained. These children's

whole existence was so contrary to natural law that they

could not be acknowledged by the father and so made

legitimate. Not being legitimate meant that a child could

not inherit from his or her father, or from anyone in his or

her father's line, and such a person could not hold public

office.13

It was possible for children born during a marriage to

be illegitimate, though this was rare. Children born into

clandestine marriages were illegitimate, if the spouses knew

of an impediment that kept them from marrying openly. This

impediment made the marriage invalid, and therefore the

children were bastards. All marriages that did not meet the

dictates of the Catholic Church and were therefore invalid

also resulted in offspring being declared illegitimate.

Another instance of a child being declared illegitimate was

when that child was proved to be the offspring of a man

56

other than his mother's husband. This designation usually

resulted from a lawsuit by the husband's true heirs. One

more example concerns the offspring of married men. Married

men could not legally keep concubines, and so any child born

to the concubine of a married man was not, and could not

ever be, legitimate.14

Single men could keep concubines, and their children

were called natural children. Such children could be made

legitimate in different ways. The father could take the son

to court and declare to the king or council that the child

was his and that the son was now devoted to the service of

the king or council. This circumstance made the son fully

legitimate. He could then inherit and hold office, just as

though he was born to a legitimate wife. If a man kept a

slave as mistress, he could not legitimate their children

unless he first freed the mother, and only then if he had no

other legitimate heirs.15

A man's natural children could be made legitimate by

being so designated in a will, or by other notarized

documents. In this case, they could only inherit from their

parents, and not from other relatives unless specifically

mentioned in the other person's will. Natural daughters

could be made legitimate by being married to a city

official. And, children born to a concubine who was

57

faithful to her keeper, automatically gained legitimacy if

their father married their mother. Kings and popes could

also legitimate a man's offspring, but only within their own

jurisdictions. If the pope legitimized a man, then the man

could enter the priesthood and hold ecclesiastical offices,

but not temporal ones. If a king legitimated a man, then

the man could hold temporal offices, but not enter the

priesthood.16

All Castilian laws concerning legitimacy are in direct

contrast to the common law of England, which held that all

children born during a marriage were legitimate, and all

children born out of a marriage were illegitimate. In

England there existed no process for legitimation, though a

suspected bastard could be disinherited. There also existed

no form of adoption, which was popular in war-torn Castile.

As in all other areas, the laws regarding adoption were

specific and detailed. Any free man, not under the control

of his father, could adopt. The adopter had to be at least

eighteen years older than the adoptee, and the adopter must

be able to have his own children. Specifically, he must be

physically formed so that he could naturally procreate and

he must not be of a cold disposition, which would prevent

his having relations with a woman. However, a man could

58

lose his natural ability to sire children through accident

or injury and still be able to adopt.17

The adoptee had to consent to the adoption, and so

children less than seven years of age could not be adopted,

because they did not have the legal capacity to consent.

Children between seven and fourteen years could be adopted

with the consent of the king, and the law lists all the

things the king should take into consideration before giving

consent. Freedmen could not be adopted, because of the

loyalty they owed to the master who freed them, and because

the former slave could be reenslaved if the master wished.

Guardians could not adopt their minor wards, because

guardians had to render accounts of their ward's property,

and adoptive fathers did not. After the ward reached the

age of twenty-five years, the guardian could adopt him, if

the king consented. In this case the ward would not be

defrauded by the guardian.18

There were no laws regarding the adoption of daughters,

so apparently this did not happen. The purpose of adoption

was to give a man an heir, and while women could inherit,

males were customarily the main heirs of the father. The

only thing that would be accomplished by the adoption of a

daughter would be to split the inheritance and oblige the

father to have to provide another dowry. Neither of these

59

outcomes made monetary sense. As noted earlier, women could

not adopt except to replace a son who had been lost in

battle. This restriction suggests that having a male heir

was more important to the Castilians, for while women were

valuable members of the family, the sons carried the family

honor. When a daughter married into another family, she

became part of that family, while a son remained his

father's son.19

Family law also dealt with circumstances that were not

as felicitous as adoption. Adultery, for example, was both

a crime and a family affair, and was handled in both

sections of the law. What survived into twentieth-century

Texas as Αthe unwritten law≅ of husbands was set down in

the Partidas. If a husband found his wife in the act of

committing adultery, the husband had the right to kill the

other man. He did not have the right, however, to kill his

wife. Instead he must turn her over to a judge. If a

husband suspected that a man was trying to wrong him through

his wife, the husband must notify the suspected adulterer

three times, ordering him not to speak to his wife, and the

husband had to tell the wife not to speak to the other man.

After these warnings, if the wife and the other man were

found together, adultery was presumed to have taken place.

In this instance, the husband would be justified in killing

60

the other man, though he still was not allowed to kill his

wife.20

When a husband suspected his wife of adultery, it was

his moral duty to accuse her, so that she would stop

committing a mortal sin. He could either divorce her or

pardon her, after the adultery was proved. All that was

needed to pardon her was his continuing to live with her.

If she continued to commit adultery after the husband

pardoned her, her father, brothers, and uncles could accuse

her of the offense, because her actions brought dishonor

upon them.21

A man who committed adultery with a married woman was

subject to severest punishment. Even if the husband did not

kill the adulterer, the law could take his life. The

automatic penalty for a man convicted of adultery was death.

For a woman, the automatic penalty was public scourging,

after which she would be sent to a convent, and she had to

forfeit her dowry. The husband could still forgive her and

take her back within two years. If the husband committed

adultery himself, the wife could force him to take her

back.22

Several defenses could be mounted to challenge the

charge of adultery. If the man did not know that the woman

was married, he could not be convicted of adultery. The

61

woman would still be guilty, though, because she knew she

was married. If, however, she believed that her husband was

dead, she could not be convicted of adultery. On the other

hand, if the husband was the procurer for the act of

adultery, or if he consented to it, he could not accuse his

wife. But this was a chancy defense, because any man who

acted as procurer for his wife would be put to death, as

would any person who acted as a procurer for any good woman.

A woman's poor reputation would apparently act as a defense

for the Christian man who committed adultery with her. When

a Jewish man had carnal relations with a Christian woman, no

matter what her reputation, he would be put to death. When

a Moor had relations with a Christian woman, no matter what

her reputation, he would be stoned to death. In both cases

the woman would forfeit half of her property and be publicly

scourged for the first offense. The penalty for the second

offense was death.23

Society also discouraged acts of seduction not

culminating in adultery. It was a crime for a man to

importune virgins, married women, or honorable widows. This

would lead them to be suspected of dishonor, and the man was

liable to punishment. When a man gave a gift Αto a woman

of good reputation for the purpose of inducing her to commit

acts of wickedness with her body,≅ she did not have to

62

return the gift, even if she did not commit the act of

wickedness. The man's base conduct nullified the implied

contract. Likewise, if a man gave a gift to a woman of poor

reputation for the same reason, he could not recover the

gift from her, either, because her sin lay not in accepting

gifts but in lying with men. Since she did not commit a

base act but he did, he forfeited the gift to her.24

Men and women had complete equality in one respect: the

penalty for a wife killing her husband was the same as for

the husband killing the wifeΧdeath. A woman who induced

her own abortion by drugs or physical means was guilty of

murder only if the child was already moving in the womb.

Also any man, including her husband, who struck her after

the fetus had begun to move and by his violence caused an

abortion was guilty of murder. Even after a woman was

accused of heinous crimes, she still had some legal

protection. Accused women were not put into prison with men

but were kept in convents, so that in the case that they

were judged innocent they would not have been dishonored.25

Some murders were justified by the circumstances. A

father could kill a man who was in the act of violating his

daughter, and a husband could kill a man caught in the act

of violating his wife. A cuckolded husband could also kill

the man who was committing adultery with the husband's wife,

63

but the father of the misguided daughter was more

restricted. If a father found his daughter committing

adultery, he had two options. Legally, he could kill both

parties, or kill neither. It was considered unfair to a

wronged husband, who had suffered the greater dishonor but

who could not kill his wife, for a father to fail to kill

his daughter if he killed the daughter's lover. As any good

defense attorney would note, however, the difference between

violation and adultery lies only in the mind of the woman,

and it would be much in her self-interest to claim rape.26

Law-abiding Castilians considered it a horrible crime

for a man to carry off a virgin, married woman, widow, or a

woman belonging to a religious order. Any such action

brought dishonor to all the woman's relatives and

represented violence both against honorable people and

honorable society. The penalty for carrying off and

dishonoring such a woman was death, and all the man's

property was forfeited to the woman. If the woman consented

to marry her abductor, he would not be killed, but if her

parents did not consent to the marriage, his property would

go to them. Consent of both parties and the family of the

woman was usually necessary to have a valid marriage, but in

this case the marriage was valid after the non-consenting

parents received the man's property.27

64

From the Partidas, the reader can discern several

things about medieval Castilian society. First, they

believed the rule of law was necessary for an orderly,

stable community. The detail with which these laws were

written shows that the compilers wanted every possible

situation covered in advance, so everyone could know the

right and proper thing to do in each circumstance. Every

person would know his or her rights and responsibilities,

and the attendant penalties for wrongdoing. Since

Castilians had a great propensity for bringing lawsuits to

avenge every slight, a system of laws that insured justice

for all was the bedrock of the society.

The family was the basic unit of the community, and the

laws tended to augment the stability of that unit. All

members of the family knew their places, their duties, and

their privileges. Children were important. Their rights

were protected by law. They could own property, but their

parent or guardian would administer it, since minors were

presumed incapable by law and might be taken advantage of by

unscrupulous people. The guardians themselves were subject

to charges of malfeasance and liable for any wastage of the

child's property. Women were valuable members of the

community, and had the right to consent to, if not choose,

65

their husbands, for again no marriage was valid without

their consent.

Many of the laws affecting women reflect the concern of

the society that the children born to a married woman were

also the children of her husband. This concern brought

about stringent adultery laws, where no actual proof was

needed if the circumstances were suspicious enough. Women

could lose their reputations, could even become criminals,

and still not face the same harsh penalties as their male

counterparts. A woman had to be irredeemable to face the

death penalty, while men could receive capital punishment

merely for inflicting dishonor. Women, even as criminals,

had value. Honorable women were the most priceless

possessions of the family, the community, and the realm.

In retrospect, Castilian women had specific legal

rights under the Partidas which were much greater than those

of women in many other countries and times. These women did

not have total freedom, for they had to abide by all the

rules of their community in order to claim their legal

rights. As long as they kept within the framework of

society, however, they could call on the law for protection

from anyone who would take away those rights. Castilian

women knew their rights, and their limitations, and how they

66

could make even the limitations work for them in law. They

would take this knowledge with them to the New World.

67

ENDNOTES FOR CHAPTER 3

1. Las Siete Partidas, translation and notes by Samuel

Parsons Scott (New York: Commerce Clearing House, 1931),

Part 3, Title 2, Law 7; Part 6, Title 7, Law 5.

2. Ibid., Part 4, Title 1, Law 5; Part 4, Title 2, Laws 7,

15; Part 4, Title 3, Law 5.

3. Ibid., Part 5, Title 14, Laws 50, 51; Part 3, Title 2,

Law 14.

4. Ibid., Part 4, Title 8, Laws 2, 3; Part 4, Title 9, Law

10.

5. Ibid., Part 4, Title 10, Law 2; Part 4, Title 9, Law 13;

Part 7, Title 17, Law 1; Part 4, Title 9, Law 2; Part 4,

Title 10, Law 6.

6. Ibid., Part 4, Title 13, Law 7.

7. Ibid., Part 4, Title 6, Law 16.

8. Ibid., Part 4, Title 6, Law 17.

68

9. Ibid., Part 3, Title 14, Law 9.

10. Ibid., Part 7, Title 7, Law 3; Part 4, Title 19, Law 3.

11. Ibid., Part 4, Title 12, Law 3.

12. Ibid., Part 4, Title 14, Law 2; Part 4, Title 13, Law 1.

13. Ibid., Part 4, Title 15, Laws 1, 3.

14. Ibid., Part 4, Title 15, Law 2.

15. Ibid., Part 4, Title 15, Law 5.

16. Ibid., Part 4, Title 15, Laws 4-8.

17. Ibid., Part 4, Title 16, Laws 1-3.

18. Ibid., Part 4, Title 16, Laws 4-6.

19. Ibid., Part 4, Title 16, Law 2.

20. Ibid., Part 7, Title 17, Law 13; Part 3, Title 14, Law

12.

21. Ibid., Part 4, Title 9, Law 2; Part 7, Title 17, Law 2.

22. Ibid., Part 7, Title 17, Law 15; Part 4, Title 10, Law

6.

23. Ibid., Part 7, Title 17, Laws 5, 7; Part 7, Title 22,

69

Law 2; Part 7, Title 24, Laws 9, 25.

24. Ibid., Part 7, Title 9, Law 5; Part 5, Title 13, Law 53.

25. Ibid., Part 7, Title 8, Law 8; Part 7, Title 29, Law 5.

26. Ibid., Part 7, Title 8, Law 3; Part 7, Title 17, Law 14.

27. Ibid., Part 7, Title 20, Laws 1, 2.

69

CHAPTER 4

THE TRANSFER OF CASTILIAN LAWS TO NEW SPAIN

By the fifteenth century, when Ferdinand and Isabella

joined the crowns of Aragon and Castile, the laws of the

Partidas were accepted as the customary law by the people of

Castile. Though the Partidas were not the only law, as each

town was still governed by its own codes, they did serve as

a common law for all of Castile. It was the goal of the

Catholic Monarchs to have ΑOne Faith, One Crown, One Law≅

for all of Spain. This chapter deals with the ΑOne Law≅

they wished to apply to all their subjects, including those

in the New World, and it was based on the Partidas.

The year 1492 was a watershed year in Spanish history.

The Sephardic Jews had to leave Spain or convert to

Christianity. With the exception of Muslims in Granada, all

subjects of Spain had to become Roman Catholics. The ΑOne

Faith≅ had been accomplished. The final phase of the

Reconquest was completed, and the Moors no longer ruled the

kingdom of Granada. The entire Iberian Peninsula, except

for Portugal and Navarre, was united under Ferdinand and

Isabella. So the Catholic Monarchs had established the

70

ΑOne Crown.≅ The work Arte de la lengua castellana

standardized and modernized the Castilian vernacular. And

lastly, an excellent navigator and self-promoter named

Christopher Columbus persuaded Isabella to finance his

journey to the East Indies by sailing west.

Because Isabella, the queen of Castile, underwrote this

exploration, when new lands were found the ΑOne Law≅ that

governed those possessions was Castilian in origin. It was

Castilians who populated the islands and mainlands of the

New World, and it was the Castilian way of life that spread

over the Western Hemisphere from the southern part of

present-day United States to the tip of South America,

excluding Brazil. Technically, Castilians were the only

legal emigrants to the Indies until 1600.

The Castilians developed a science of law early,

because their way of life depended on rational, reasonable

laws. The cortes (parliament) of 1480 ordered the famous

jurist Alfonso Díaz de Montalvo to codify the existing

Castilian laws. The result was the Ordenanzes Reales (Royal

Ordinances) that became the basis of modern Spanish

jurisprudence. The Laws of Toro in 1505 stated that

everyone who would be using the laws, such as lawyers and

judges, had to be familiar with the Partidas, the Fuero Real

(Royal Codes), and the Ordenamientos (laws and edicts)

71

passed by Ferdinand and Isabella. Thus, instead of relying

on medieval jurists, or the caprice of judges as in other

European countries, everyone would follow the same laws.

Even the crown knew and followed the laws. Ferdinand and

Isabella owned two copies of the Partidas, a printed copy

and a manuscript made especially for them. They also owned

copies of the Fuero Real, the Ordenamientos, books on canon

law, books on civil law, and commentaries on many different

kinds of law.1

The laws passed by Ferdinand and Isabella were

Αdesigned to buttress royal authority and maintain social

stability.≅ Laws rested not only on the strength of the

monarchs, but also on the weight of authorities cited. For

example, the Partidas cited the authority of the Old and New

Testaments, the church fathers, and the commentaries of

Roman jurists, as well as traditional Castilian customs.

Ferdinand and Isabella followed this tradition by consulting

authorities before making decisions. This practice added

weight to their edicts and increased the prestige of the

monarchy. The Catholic Monarchs realized that the law, when

it was in line with religion, political reality, and

national purpose was a mighty weapon. During their reign,

written law supported the monarchy and the monarchy

72

supported written law. Justice was therefore a royal

instrument.2

The Partidas were particularly useful in this regard,

because they placed the king as absolute ruler over each of

his vassals. There was a direct link between the king and

each vassal, not a pyramid downward from king to chief

vassal, to lesser vassal, to least vassal. Through the

Partidas, Ferdinand and Isabella espoused total royal

sovereignty. In Spain itself they had to compromise with

powerful lords and other interests, but in the New World

monarchy was unchallenged. Little separated the crown from

the church. The crown upheld the church and the law, and

the people held the two in almost equal regard. The law

itself was almost religious in character: people believed in

the law as the way to maintain an ordered and peaceful

society. The law was so important to Queen Isabella that

she incorporated a directive into her will in 1504 to

recodify the laws of Castile. That this was not

accomplished until the reign of Philip II in 1567 points out

the pace of Spanish bureaucracy, rather than lack of support

for the project.3

Within Spain, even within Castile, Isabella had to

contend with powerful nobles and church officials. She was

determined, however, that nothing come between her and her

73

right to rule. In the New World this was much more easily

accomplished. Technically, the New World belonged to the

crown of Castile. The viceroyalties of New Spain (Colonial

Mexico) and Peru joined with other Castilian possessions to

form an empire governed by the laws of that realm. The

crown was absolute possessor of all political and property

rights from the beginning, and soon gained religious power

as well.4

Map 4. New Spain

74

Ferdinand and Isabella were both intensely religious

and jealous of their powers. Though they were called the

Catholic Kings, they did not want the church to encroach on

their royal prerogatives. From the beginning of Spanish

exploration in the New World, the crown of Castile sought

total control. They achieved this in the Patronato Real

(Royal Patronage). Pope Alexander VI began the process in

1493 of transferring control of church matters in the New

World to the crown. In 1493 the pope also divided the New

World and Asia between Spain and Portugal; the line of

demarcation was moved in 1494 when Castile and Portugal

signed the Treaty of Tordesillas to award Brazil to

Portugal. The papal bulls of 1501 and 1508 spelled out the

rights of the kings in their new territory. In all of the

newly discovered lands, the crown controlled taxation of

church property and the nomination of all higher church

officials. The pope could only select from the crown=s

short list of nominees for bishops, archbishops, and abbots.

Crown-appointed viceroys and governors nominated lower

church officials to New World prelates.5

In return for these privileges, the crown pledged to

spread the Roman Catholic faith throughout all its new

possessions. The crown paid the cost of building and

operating churches, monasteries, and charitable hospitals.

75

It received all revenues from church activities, but these

were never enough to cover their expenses. Papal bulls and

other religious instructions had to be approved by the

Council of the Indies before they could be announced in the

New World. In effect, the church became another branch of

Castilian government in the expanding empire. As

conquistadors opened new areas to Spain, the crown set up

new bishoprics and dioceses. The viceroys who ruled New

Spain also ruled the church within New Spain, leaving Rome

very little influence there.6

In the decades of exploration, the most important

reason for clergy to come to the New World was to convert

the natives to Catholicism. Franciscans in New Spain,

(beginning in 1523), Dominicans (1526), Augustinians (1533),

and later Jesuits (1572-1767) fervently sought conversions

and accepted the risk of martyrdom. The crown paid for the

passage and provisions of friars to the New World, and

provided food and shelter until they could form a stable

community. Because so few secular clergy came to the

Americas in the first decades, papal bulls allowed lesser

clergy to perform sacraments normally reserved for regular

clergy. A clergyman could baptize thousands of Indians,

sometimes hundreds of thousands, during his sojourn in

America. An estimated four million Indians received the

76

sacrament of baptism during the first fifteen years of

Spanish conquest. Most, perhaps almost all, of these

Indians received very little religious instruction before

their baptism. When the Indians reverted to their previous

way of life after being claimed by the Catholic church, the

clergy viewed them as heretics. Heresy, especially such

widespread apostasy, brought in the inquisition.7

Few institutions have gained such a poor reputation as

the Spanish Inquisition. Pope Sixtus IV authorized the

creation of an inquisition under state control in 1478 when

Isabella petitioned for a way to control the Αmenace≅ of

converted Jews in Castile. Jews had, for centuries, been

protected throughout the Iberian Peninsula. However, a

combination of antisemitism sweeping Europe in the

fourteenth and fifteenth centuries, the economic and

political power of the Jewish community that might oppose

the crown, and the intense desire of Ferdinand and Isabella

to have a state unified in religion as well as politics made

a state-controlled inquisition viable. The populace felt

threatened both by Jews and by conversos, persons of Jewish

heritage who had converted to Catholicism. The conversos

were especially suspect, because they claimed to be

Christian while often secretly practicing their traditional

religion, or so many people believed. The primary purpose

77

of the Spanish Inquisition was to weed out heretics.

According to both church and state, people who had been

converted to Christianity but who then practiced another

religion were heretical apostates. Conversos were the first

target of the inquisition, but this reasoning applied as

well to Indians in the New World.8

One interesting insight into the Spanish psychology of

this era was that even the lowest classes felt themselves

part of the dominant warrior class. They did not feel

humble and downtrodden. People in the lower classes

strongly identified themselves as Catholic Christians, and

therefore honorable. The poor people obviously had pure

blood because the popular view held that all converted Jews

were rich. This belief gave even the poorest peasant reason

to be proud, since their very poverty affirmed the purity of

their lineage. A tradition of having a military heritage,

even when none actually existed in a particular family, and

the custom of thinking of themselves as living on the front

line of the battle to extend Christianity, proved useful in

the settlement of the New World.9

As soon as the Catholic church came to the New World,

it began converting the Indians. Clergymen whose mission it

was to baptize all inhabitants of the New World and so save

their souls were ardent, eager, and sincere. They could

78

not understand why, after natives had been baptized, that

they would return to their previous faith. In 1517 the

Inquisitor General of Spain, Cardinal Jiménez de Cisneros,

granted inquisitorial powers to bishops in the Indies so

that they would have the authority to deal with these

heretics. Bishop Manso of Puerto Rico and Pedro de Córdova,

a Dominican, became official inquisitors for the Indies in

1519. The Dominicans exercised most of the inquisitorial

functions until the formal Spanish Inquisition arrived in

New Spain in 1571. Again, the primary function of the

inquisition was to safeguard the purity of the faith and

protect good Spanish citizens from the contamination of

heretical thinkingΧespecially after the successes of the

Protestant Reformation.10

Most Spanish citizens of New Spain actually welcomed

the coming of the inquisition. During the time of the

Reformation and Counter-Reformation, Spanish Catholics hated

and feared Protestants as well as other heretics. The lower

classes of the New World, much like the lower classes

throughout Europe, feared the upper classes, especially

those suspected of being secret Jews. When the inquisition

came to each community, those secret Jews would be exposed

and punished, or so the populace believed. Known heretics

would leave villages and towns before the arrival of the

79

inquisition, much to the relief of the orthodox. Because

the inquisition punished such sins as public drunkenness,

cursing, lewd behavior, and other social improprieties,

upright citizens saw the inquisition as a way to rid

themselves of undesirables. The Spanish culture of that

time valued conformity, and the inquisition helped to

promote compliance.11

Queen Isabella zealously guarded her rights and

privileges in the Indies as well as in Castile. All

movement between Spain and the Spanish empire in the New

World was tightly controlled by the Casa de Contratación

(House of Trade), established by the Crown in 1503 and

housed in Seville until the early 1700s. Seville was, for

many years, the only authorized port for passage or shipping

to and from the New World. One of the main functions of the

Casa de Contratación was to check out the background of

potential emigrants. Each person had to prove their

limpieza de sangre, or purity of blood. Only persons who

could prove that their heritage was fully Christian, i.e.,

no conversos, received a license to travel to the New World.

As mentioned, at first, only Castilians were allowed to

travel to the New World, though this restriction was relaxed

around 1600 to include all properly licensed Spaniards.

Still, only persons born in Spain itself were supposed to

80

emigrate to New Spain. Other subjects of the Spanish empire

had to obtain special dispensation from the king to cross

the Atlantic legally.12

Another function of the Casa de Contratación was the

censorship of books shipped to the New World. The purpose

of this censorship was again to ensure the purity and

uniformity of thought in the Indies. Officials forbade

shipment of heretical works, including any by Protestant

authors. Later, works praising the American or French

Revolutions also had to be smuggled into the Indies, as did

certain philosophical and intellectual works that the House

of Trade officials deemed controversial.13

In 1524 Charles V created the Consejo Real de las

Indies (Royal Council of the Indies) to govern and

administer the New World. This agency traveled with the

Spanish court and turned the wishes of the crown into law

for all Spanish overseas possessions. Shortly after

Columbus=s return from his first voyage, Isabella put her

own chaplain, Juan Rodríquez de Fonseca, in charge of all

matters relating to the New World. Fonseca remained in this

capacity, personally managing these activities and reporting

directly to the crown, until his death in 1524, though the

Casa de Contratación took over immediate supervision of all

matters related to trade. When Charles V came to the

81

throne, and especially when he became emperor, he had little

time to give to the Indies. As he did in other situations,

Charles V created a royal council to take over bureaucratic

functions.14

In the beginning, the council was rather small, with a

president, four councilors who were either lawyers or

clergy, and a few clerks, including a secretary, an

accountant, a reporter, and an usher. Later, as more issues

needed to be decided, the council grew to include a grand

chancellor and his deputy, more accountants, more lawyers,

more reporters, more ushers, a chaplain, notaries, and even

a historian. Eventually there were ten councillors and an

even more numerous staff. In actuality, the Council of the

Indies became the most important royal council, though it

remained in secondary position in honor to the Council of

Castile. The Council of the Indies had the same supreme

authority over the New World as the council of Castile did

over Spain itself. The Indies belonged directly to the

crown of Castile, and only the council could issue laws

regarding these lands. By the authority of the Patronato

Real, the council even approved papal bulls before they

could be read in the New World.15

The Council of the Indies held final legal authority

over the colonies as well. It sat as the court of last

82

resort on any matter pertaining to the Indies, including

civil and criminal cases arising in the New World. All

Indians were in the charge of the council, and it decided

cases regarding abuses in the encomiendas, where the early

encomenderos received the right to native labor. The

council arranged for residencias, a review of each high

official=s conduct at the end of his term in office,

visitadors, or inspectors who reported on any and every

aspect of life in the Spanish colonies, and the exercise of

royal patronage within the Indies. Because the council=s

workload was so enormous, and because officials had to act

carefully to avoid personal responsibility for misdeeds, the

council acted slowly. The council's orders, rulings, and

laws were compiled and published over the several centuries

of Spanish dominion in the Americas.16

Over time, these orders, rulings, and laws grew so

voluminous and contradictory that even lawyers could not

determine the applicability of statutes in any particular

case. The king and council decided that a systematic

compilation was necessary. Juan de Ovando had just

completed an inspection of the Indies and reported that

members of the council had inadequate knowledge of the

Indies. Philip II ordered him to undertake this project.

Ovando organized the task and completed one book, on the

83

ordinances of the Council of the Indies, before he was

promoted to the presidency of the Council and stopped work

on the compilation. It took several men, most notably

Antonio de León Pinelo, more than a hundred years to

accomplish this work, and in 1681, the first four-volume

collection of colonial edicts was published. It contained

only 6,400 laws, reduced from almost half a million royal

decrees. Later editions revised the Recopilación to include

new laws and omit legislation no longer in force. This

dissertation uses the Recopilación de las Leyes, or

Compilation of Laws, published in 1791, because it contains

the compilation of laws most applicable for the period 1717-

1773, the early years of San Fernando de Béxar, which will

be discussed in later chapters.17

The Recopilación deals primarily with administration

and bureaucracy. Much like the Partidas, the first book of

the Recopilación covers the church, its rights and

responsibilities, and its limits in the new lands. Book Two

pertains to the administration of the Indies, the various

officials and their duties. Book Three incorporates the

military establishment and its jurisdictional limits. The

legalities of the process of discovery, exploration, and

exploitation of the Indies is contained in Book Four, while

Book Five presents more detail about the duties of the minor

84

officials, as well as the other professional people of the

cities. Book Six considers the rights of the Indians and of

the encomenderos, those Spaniards who had the right to

collect Indian tribute. Various unsavory persons, such as

vagabonds and gypsies, are the topic of Book Seven, and Book

Eight explains royal rights and privileges in the New World.

The last Book covers a wide variety of topics, including

expected behavior of the officials of the Real Audiencias

(Royal Courts), the Casa de Contratación (House of Trade)

that governed who came from and went to the Indies, the

various offices that had to be created for the frontier

situation, and even the navy. In all of these books, the

laws are handled with the same detail and precision found in

the Partidas, with the Council of the Indies trying to

foresee all possible events and promulgate laws to cover

them.

The Spanish crown did not try to change Castilian

society as it spread out in its overseas possessions.

Instead, it was determined to enlarge the scope of that

society, and purify it at the same time. The Casa de

Contratación required proof of purity of lineage before it

would grant licenses to go abroad. People who were

considered undesirable in Spain were not allowed to emigrate

to the Indies. Such undesirable people included recent

85

converts, Jews, Moors, gypsies and other wanderers,

foreigners, and heretics. Single women, too, were not

allowed to make the journey overseas, but the rules

encouraged, and sometimes mandated, that married men bring

their wives to the Indies, or send for them as soon as the

husbands became established settlers.18

One way in which Castilian society differed from the

rest of Europe was the traditional legal status of women;

this feature, like so many other cultural elements imported

from Castile, proved useful in the New World. As in the

Partidas, only in exceptional cases did women have full

civil capacity. As single women they were under the control

of their fathers, older brothers, or uncles. As married

women, they were under the control of their husbands. But

as widows, responsible, respectable women could gain full

capacity. Regarding women=s rights, as Castilians carried

their laws to the Indies, there was no special difference

made between the laws of the peninsula and the laws of the

Indies. The Council of the Indies did draft a few

regulations pertaining to the status of the wives,

daughters, and wards of Spanish officials, as well as those

pertaining to women's rights to go to the New World. The

Council also issued regulations to protect Indian women.

But as a whole, lawmakers for the Indies intended to carry

86

over the traditional community property rights of women,

because these had served so well during the Reconquest. The

right of community property had helped repopulate the lands

gained from the Moors, and therefore should work just as

well in populating the New World with Castilians. In fact,

these rights spread with the Spanish into what would become

the American southwest.19

The laws of the Consejo Real extended many of the

traditional protections and privileges of Castilian women to

the women of New Spain. These protections could also be

adapted to the new situations. The Spanish administrators

of the New World saw the natives as having the right of

governmental protection from private abuse. In the

encomienda system Indian women did receive some protection.

Those women could not be locked up and forced to spin and

weave clothing for the encomenderos. When Indian men worked

on the ranches of the encomenderos, the native wives and

children could not be forced to work also. If they wished

to work, they had to be paid, for their labor was not part

of encomienda privilege.20

Since honor was so important to the Spanish, in so far

as possible the honor of Indian women was also protected.

No married native woman could be forced to work in the house

of a male Spaniard, unless her husband was also a servant in

87

the same household. If a woman working as a house servant

married, the encomendero could not refuse to let her go live

with her husband. No single woman could be forced to be a

house servant, unless both she and her parents freely

consented. This restriction reflects the necessity for both

a woman and her family to consent to a marriage, as set

forth in the Partidas.21

One of the main goals of the conquerors was to

Christianize the Indians, and this obligation included

inducing them to live by Castilian standards. The native

family structure was to be replaced by the Castilian model,

and the laws would punish any deviations or lapses. By law,

no Indian, of either gender, could have more than one

spouse, and those who did so were to be punished as an

example to others. No chief, even if still an infidel, was

allowed to have more than one wife. Furthermore, Indians

were not allowed to continue the practice of selling their

children into marriages. Instead, the Spanish way, where

consent was required, was to be used. Indian women, unlike

Castilian women, did not have much legal capacity or

responsibility, so they did not have to pay taxes even when

they were the heads of household.22

Spanish women in the Indies kept their traditional

rights of inheritance and property ownership. Widows could

88

inherit encomiendas from their husbands, providing there was

no legitimate male hair. Legitimate daughters, if of age,

could also inherit encomiendas, providing that they were

married or did marry within a year of the death of their

husband. These constraints were expressly designed to keep

helpless young woman from being victimized by unscrupulous

men. Similar protections for more experienced widows

apparently were not needed. A further limitation was added,

stipulating that in order for a spouse, of either gender, to

succeed to the encomienda, they must have lived there as the

spouse for at least six months. This proviso again served

to assure that the property not pass into the hands of

unscrupulous persons.23

The Spanish crown wanted the new lands to be settled

and peaceful, and therefore profitable. It recognized the

value of wives and family in controlling the uncivilized

impulses of the conquistadors. Consequently, the rules on

bringing wives to the New World became stricter as time went

on. By a law announced in 1539, single women were not

allowed licenses to go abroad, and married women who went

overseas had to go directly to their husbands. In 1546 the

law allowed men to take their wives with them when they went

to the Indies. By 1549 married men could not serve in any

official capacity overseas unless they took their wives with

89

them. After 1554 wives could get licenses on their own from

the Casa de Contratación to join their husbands in the new

lands. Even merchants who traded in the New World, except

for their first, exploratory voyage, had to take their wives

with them.24

Though the Council of the Indies made the actual rules

for the New World, it did so in accordance with the wishes

of the crown. Therefore, the personalities and temperaments

of different rulers contributed to the style of

administration of the colonial possessions. Ferdinand and

Isabella gave personal attention to the progress of

exploration and the founding of colonies in the Indies,

although not much activity had taken place by the end of

Ferdinand's reign in 1516. Charles V, as emperor of the

Holy Roman Empire, had a much larger area to rule, and was

determined to rule each of his possessions by its own laws.

One effect of this decision was to stop all constitutional

changes during his rule. Another was the development of a

new bureaucracy within each territory to carry out his

directives. Charles V created the Council of the Indies,

because the old-style manner of government was not adequate

to the new workload.25

As noted, the Council of the Indies had complete

control over all judicial, administrative, and

90

ecclesiastical affairs in the Indies. However, the crown

did not want any branch of government to become too

powerful, so there was a system of checks on the various

governmental powers in the Indies. Government by

audiencias, or courts, was limited by the authority of the

viceroyalties, and vice versa. After the reign of Charles

V, these checks evolved into governmental stalemate, as

indecisiveness became the hallmark of the Hapsburgs,

especially Philip II, who approved almost every detail in

his own handwriting.26

During the rule of the later Hapsburgs, various local

powers in the Spanish realms often tried to become more

autonomous. In the colonies, this meant the growth of some

local control, but this condition did not last long. When

the Bourbons came to the throne in 1700, their goal was to

improve the economic and social stability of the country.

They instituted moral progress, material prosperity, and

colonial reform. They enhanced the power of the crown,

which had diminished under the later Hapsburgs, in order to

achieve their purposes. The Bourbons followed the tradition

of Ferdinand and Isabella in imposing royal control over the

church, especially in the colonies. The Bourbon kings

unified Spain through prosperity and religion. Their

91

enlightened despotism was good for the country and for the

Indies, ending decades of bureaucratic lassitude.27

Colonial administration, then, was based on the laws of

Castile, and administered by a bureaucracy that usually

acted with glacial slowness. These repeated bureaucratic

delays led the people in the Indies to rely more on

traditional laws, as stated in the Partidas, than on

governmental regulations. The area of women's status did

not receive much governmental attention, and thus remained

true to the tradition of the Partidas. Women retained all

their rights in Spain's overseas possessions and were

acknowledged as vital to the civilization of the New World.

92

ENDNOTES FOR CHAPTER 4

1. Townsend Miller, The Castles and the Crown, Spain 1451-

1555 (New York: Coward-McCann, Inc., 1963), 108; Juan

Beneyto Pérez, ΑThe Science of Law in the Spain of the

Catholic Kings,≅ in Roger Highfield, ed. Spain in the

Fifteenth Century 1369-1516: Essays and Extracts by

Historians of Spain, translated by Frances M. López-Morillas

(New York: Harper and Row, 1972); William H. Prescott,

History of the Reign of Ferdinand and Isabella, the

Catholic, of Spain (2 vols.; London: George Routledge and

Sons, 1867), 1: 221-223.

2. Peggy K. Liss, Mexico Under Spain 1521-1556: Society and

the Origins of Nationality (Chicago: University of Chicago

Press, 1975), 5, 8-10.

3. Ibid., 10, 12, 149; Prescott, Reign of Ferdinand and

Isabella, 1: 338.

4. C. H. Haring, The Spanish Empire in America (New York:

Oxford University Press, 1947), 6-7.

5. Haring, Spanish Empire, 180-181; Stanley G. Payne, A

93

History of Spain and Portugal (2 vols., Madison: University

of Wisconsin Press, 1973) 1: 205-06.

6. Haring, Spanish Empire, 182-184; Colin M. MacLachlan and

Jaime E. Rodríguez O., The Forging of the Cosmic Race : A

Reinterpretation of Colonial Mexico (Berkeley : University

of California Press, 1980), 122-125.

7. Haring, Spanish Empire, 182-184; MacLachlan, Forging, 12-

125; Jaime Suchlicki, Mexico: From Montezuma to NAFTA,

Chiapas, and Beyond (Washington, D.C.: Brassey=s, Inc.,

1996), 31-33; Lesley Byrd Simpson, Many Mexicos (rev. 4th

ed.; Los Angeles: University of California Press, 1966), 74-

91.

8. Payne, History, 207-209; J. I. Israel, Race, Class, and

Politics In Colonial Mexico, 1610-1670 (New York; Oxford

University Press, 1975), 125-131. The most complete and

unbiased account of the Spanish Inquisition is Henry Kamen,

Inquisition and Society in Spain in the Sixteenth and

Seventeenth Centuries (Bloomington: University of Indiana

Press, 1985).

9. Payne, History, 1:272, 285, 188; Prescott, Reign of

Ferdinand and Isabella 1: 1, 13, 15.

94

10. Haring, Spanish Empire, 201-203; Payne, History 1:209;

J. I. Israel, Race, Class, and Politics, 125-131.

11. Haring, Spanish Empire, 179-208; Payne, History 1:218-

220.

12. Haring, Spanish Empire, 214; Payne, History 1: 274;

Jaime Suchlicki, Mexico, 34-36; Peggy K. Liss, Mexico Under

Spain, 1521-1556: Society and the Origins of Nationality

(Chicago: University of Chicago Press, 1975), 48-68.

13. Haring, Spanish Empire, 242-244; Suchlicki, Mexico, 38-

39.

14. Haring, Spanish Empire, 102-103; Payne, History 1:255-

256.

15. Haring, Spanish Empire, 103-107; Liss, Mexico Under

Spain, 69-94.

16. Haring, Spanish Empire, 107-111; Liss, Mexico Under

Spain, 48-68.

17. Haring, Spanish Empire, 110-115. For a detailed look at

how the Recopilación came to exist, see Juan Manzano

Manzano, Historia de las Recopilaciones de Indias, (2 vols.,

Madrid: Ediciones Cultura Hispánica, 1950). The first

95

volume recounts the preparation and work of Ovando, while

the second volume deals mostly with the work of Pinelo and

his followers.

18. Recopilación de las Leyes de las Indias MDCCLXXXXI, Book

9, Title 26, Laws 1-73, esp. Law 15 for converted Jews and

Moors, law 19 for Moors, Law 20 for gypsies, Law 21 for

mulattoes, Law 22 for married men having to take their

wives, and Law 23 for single women not being allowed.

19. J. M. Ots Capdequi, El Estado Español en las Indias (4th

ed.; Mexico City: Fondo de Cultura Económica, 1965), 95-96,

98, 129.

20. Recopilación, Book 6, Title 10, Law 14; Book 6, Title

13, Law 9.

21. Ibid., Book 6, Title 13, Laws 14, 15.

22. Ibid., Book 4, Title 1, Laws 4-6; Book 6, Title 5, Law

19.

23. Ibid., Book 6, Title 11, Laws 1, 4, 15.

24. Ibid., Book 9, Title 26, Laws 24-30.

25. J. H. Elliott, Imperial Spain: 1469-1716 (New York: St.

96

Martin's Press, 1964), 157-161.

26. Ibid., 165-166; John Lynch, Spain Under the Hapsburgs (2

vols.; New York: Oxford University Press, 1964) 1: 180-181.

27. Richard Herr, The Eighteenth-Century Revolution in Spain

(Princeton: Princeton University Press, 1967), 11-13; C.H.

Haring, The Spanish Empire, 8, 116, 139.

96

CHAPTER 5

THE SPANISH LEGAL SYSTEM ARRIVES IN TEXAS

Texas was one of the last Spanish provinces founded in

North America. Though it had been discovered and the coast

mapped by Alonso Alvarez de Pineda in 1519 and been explored

involuntarily by Cabeza de Vaca and his castaway friends

from 1528 to 1535, it was not until the French presented a

threat to the valuable interior provinces that the Spanish

decided to settle Texas. The entrance of Frenchman Louis

Juchereau de St. Denis into Texas in 1714 provided direct

motivation for the Spanish government to establish missions

and presidios in East Texas. Father Francisco Hidalgo, who

first entered Texas in 1691, had also long wanted to

reestablish missions among the Tejas Indians. This

combination of a French threat and a desire to save the

Indians' souls finally led to the permanent settlement of

Texas by Spaniards in 1716.1

Meanwhile, the continued presence of the French in

Louisiana, dating from 1699, as well as their persistence in

seeking trade opportunities within Spanish territories,

prompted colonial officials in Mexico City to establish

97

frontier missions as a deterrent to foreign encroachment.

As early as January 1, 1700, the first Río Grande mission,

San Juan Bautista, was established at present-day Guerrero,

Coahuila. Two other missions soon took roots in the same

area. And by 1703, Presidio San Juan Bautista provided

protection for the nearby religious outposts.2

Although Texas had been abandoned by Spaniards in 1693,

the province and its native population were never far from

the minds of Franciscan priests stationed at the Río Grande

missions. An exploratory expedition to the north of the

Great River in 1709 noted the suitability of an area near

the confluence of the San Antonio River and San Pedro Creek

as a mission site. Then, in direct response to the French

threat from Louisiana, six missions and a presidio were set

up in East Texas in 1716-1717.3

Still missing, however, was a way station between the

Río Grande missions and those located in East Texas and

western Louisiana. That omission was corrected in 1718 with

the founding of Mission San Antonio de Valero and Presidio

San Antonio de Béxar near the headwaters of the San Antonio

River. Of greater significance to this study, was a third

outpost known as Villa de Béxar, where the families of

presidio soldiers and a few civilians resided.4

98

During the years 1718-1731, the population grew slowly.

Mission records at Mission San Antonio de Valero indicate

that 47 couples were married and 107 children were baptized

at that mission alone. The civilian population also grew,

but slowly. The total population in 1726 was about two

hundred. By 1731 there were twenty-five civilian

households, composed mostly of ex-soldiers who had brought

their families to the area and remained there after they

retired. These settlers farmed, raised livestock, and

protected themselves from Indians. The total population in

1730 was three hundred. The presidial commander was the

sole source of authority, for no civilian government had

been established. But this situation about to change.5

In 1724 Brigadier General Pedro de Rivera y Villalón

had left Mexico City to tour the presidios and missions of

the entire region that was the northern frontier of New

Spain. Rivera=s instructions were to study the defenses of

the frontier and find ways to save money. Presidial

captains had a reputation for corruption and dishonesty, and

had often been accused of misusing their authority. For

example, soldiers had to buy all their equipment from the

commanders, and were vastly overcharged for their gear.

Captains also used soldiers as laborers on their private

lands. Some presidios had outlived their purpose, for the

99

nearby Indians had either been pacified or exterminated. In

all, Brigadier General Rivera toured twenty-three outposts

over three and a half years and filed reports on each one.

His reports on the Texas presidios had an immense impact on

the future of Spanish settlement in that province.6

As part of his official recommendations following his

of inspection of all Spanish military garrisons, Rivera

recommended a significant reduction in the number of

soldiers stationed in Texas, including those at Presidio San

Antonio de Béxar. Although soldiers stationed at San

Antonio were actually fit for duty, as opposed to the

majority of soldiers in most presidios, that area was so

peaceful that fewer soldiers were needed. He recommended

closing a presidio in East Texas and reducing the size of

the other garrisons. In all, the total number of soldiers

in Texas was reduced by 150 presidials. Three of the six

missions in East Texas, which had had little success in

Christianizing Indians, were closed and moved to San Antonio

in 1731.7

The overall effect of the Rivera report was to save

money for the king, but its also slowed the process of

settlement in Texas. With peace in Europe between France

and Spain, the French threat seemed less dire, and the

Indians were temporarily tranquil. Accordingly, the Spanish

100

government had concluded that a large military occupation of

Texas was inappropriate and expensive. What was really

needed were civilian settlers to more effectively populate

Texas. But few people in New Spain wanted to move to a

frontier where there were so few soldiers to protect them

from potentially hostile Indians. Instead, the king and

Council of the Indies decided to bring over four hundred

families from Galicia in northwest Spain and the Canary

Islands to help settle Spanish Texas.8

However, four hundred families could not be found who

wanted to move to the isolated, relatively unpopulated

frontier. In fact, only fifteen families, numbering fifty-

five persons, made the trip from the Canary Islands to found

the villa of San Fernando de Béxar. En route they suffered

many hardships before arriving on March 9, 1731.

Just as cities in medieval Spain had wanted to attract

residents during the Reconquest, promises were made to these

Texas immigrants. The Spanish crown offered the Canary

Islanders these inducements. First, they would be named to

the rank of hidalgo, meaning a "son of somebody," the lowest

rank of the nobility. They would receive free land, seed,

and necessary tools with which to raise crops, and the

important right to elect their own municipal government.

Each family was to receive ten ewes and a ram, ten goats and

101

a buck, five sows and a boar, five cows and a bull. All of

these promises would lead to legal disputes within a short

period of time.9

When the settlers arrived, their first task was to

plant crops, which would provide food for the coming winter

season. Since there was no time to dig new acequias, or

irrigation ditches, the Islanders settled near the ditches

dug by the older inhabitants of San Antonio. On July 2,

1731, the townsite was surveyed and laid out. Streets were

forty varas (33 and one-third inches) wide, house lots were

eighty varas square. On July 20 all the Islanders were

formally recognized as Hijos Dalgo.10

By order of the viceroy, Don Juan Antonio Pérez de

Almazán, captain of the presidio of San Antonio de Béxar,

named the eldest and most respectable men to the offices of

the cabildo, or city government. Juan Leal Goraz was the

first regidor, or councilman. The other council members

were Juan Curbelo, Antonio Salvas, Salvador Rodríguez,

Manuel de Nis, and Juan Leal Jr. These first officials held

their offices for life, or until they resigned. Vicente

Alvarez Traviesa was the first sheriff, and Francisco de

Arocha was named secretary to the council and notary public.

The first election in Texas was for the two alcaldes, or

mayors, to be chosen from among the council members. Juan

102

Leal Goraz was the first mayor, and Salvador Rodríguez was

the second.11

The laws of the Recopilación detailed the method for

setting up and maintaining a city government, and the

establishment of the villa of San Fernando de Béxar violated

several of these laws. This violation should not be

interpreted as meaning that the villa was lawless, rather

that the Spanish recognized that the laws had to suit the

surroundings in order to be effective. The first rule to be

violated was that the villa was established very close to a

mission. The law specified that there be at least five

leagues (thirteen miles) between settlements, but the

fierceness of the Apache Indians made a compact settlement

safer. Also, city officials were not supposed to be

appointed for life, rather they were to be elected annually.

Because of the small number of settlers, this law was

disregarded. After enough years had passed, during which

some of the officials had died or otherwise left office, men

other than the Islanders were elected to office. A third

violation was that all officials were supposed to be able to

write. Of all the Islanders, only Francisco de Arocha could

write a fair hand, and he was appointed to be secretary of

the cabildo.12

103

This group of Canary Islanders was originally intended

to be only the first of several groups of immigrants, but

bringing them across the Atlantic had proved to be so

expensive that further plans were abandoned. The community

stayed small for many years, and it faced continual

problems. Indian raids, strife between the original

settlers, missionaries, and the Islanders, power struggles

among the Islanders themselves, and severe weather

conditions made farming unpredictableΧall contributing to

the poverty of the settlement.13

The colonial government in Mexico City appointed José

de Urrutia to be captain of the presidio in 1733. Under his

leadership, retaliatory raids against the Apaches resulted

in the capture of many Indian hostages, and the fate of

these hostages provoked more quarrels between missionaries

and presidials. More disputes arose between the

missionaries and the Islanders over the use of mission

Indian labor, crop damage to the settlers' farms from

mission cattle, water rights, and more. The Islanders were

very proud of being hidalgos, and their assumption of

aristocratic postures did not ease tensions between them and

the older inhabitants of Béxar.14

Part of the Islanders' attitudes arose from the

legacies of the Reconquest. From that time, the only

104

occupations that a gentleman could enjoy were military

careers and ranching, because those could be done on

horseback. Islanders felt that it was beneath their status

as hidalgos to work with their hands or farm. Those jobs

belonged to peasants, not to nobility. The Islanders, for

instance, demanded that the mission fathers fence their

cattle spreads in order to prevent damage to the Islanders'

crops. The fathers responded by urging the Islanders to

fence their crops. Disputes of this nature went on for

years. The ill-feeling between these groups was aggravated

by the fact that there was not enough food for the settlers,

while the mission had excess cattle. Since the cattle ran

wild, Islanders would prey on the herds at night.

Initially, the missionaries did not mind the settlers taking

a few of the excess cattle; they did protest when the raids

turned into the wanton, wholesale slaughter of their

cattle.15

As time passed, the community began to come together.

In 1750 the population was about five hundred, and by the

mid-1770s it had grown to 1,350. Facing mutual enemies like

the Apaches forced the inhabitants of villa, presidio, and

mission to work together. Compromises on the issues of

cattle and crops eased the stress between different groups.

Inter-marriage and godfather relationships (compadrazgo)

105

brought families together. Beginning with the first

generation of Islanders, intermarriage with non-Islanders

increased, so that by the fourth generation no person could

claim pure Canary Islander descent. As the original members

of the city council retired, their places were filled by

non-Islanders. By the late 1740s, the forty-five families

who were not Islanders, and who had a generation earlier

chafed under the rule of the arrogant minority, started to

come into power themselves. San Fernando, both by

intermarriage and the institution of Spanish laws that

encouraged and protected the community, thus evolved into a

cohesive whole.16

As the inspection of Pedro de Rivera in the late 1720s

led to the settlement of the Islanders, the frontier

inspection of the Marqués de Rubí in 1767 likewise led to

significant changes for Texas. Rubí was not happy with the

conditions of the presidios in Texas. He recommended that

crumbling, useless military structures be abandoned, and

that missions without Indian converts be closed. He further

recommended that the missions in East Texas be closed and

the people sent to San Antonio, which would be designated

the new capital. As with nearly all other cases, the

Spanish bureaucracy moved very slowly before accepting

Rivera's report. His recommendations were put into effect

106

only partially in 1771, and not until 1773 was San Antonio

designated the capital of Texas.17

107

ENDNOTES FOR CHAPTER 5

1. Donald E. Chipman, Spanish Texas, 1519-1821 (Austin:

University of Texas press, 1992), 101-113; Robert S. Weddle,

The French Thorn: Rival Explorers in the Spanish Sea, 1682-

1762 (College Station: Texas A&M University Press, 1991),

192-207.

2. Chipman, Spanish Texas, 108-09.

3. Ibid., 105-113.

4. Mattie Alice Austin, "Municipal Government of San

Fernando de Béxar," Quarterly of the Texas State Historical

Association 8 (April 1905): 283-352; Carlos E. Castañeda,

Our Catholic Heritage in Texas 1519-1936 (7 vols.; Austin:

Von Boeckmann-Jones Company, 1936-1958) 2: 78; Jesús F. de

la Teja, "Indians, Soldiers, and Canary Islanders: The

Making of a Texas Frontier Community," Locus: An Historical

Journal of Regional Perspectives 3 (Fall 1990); 84.

5. Jesús F. de la Teja, San Antonio de Béxar: A Community on

New Spain=s Northern Frontier (Albuquerque: University of

108

New Mexico Press, 1995), 18 ; del la Teja, "Indians," 84-85,

90.

6. Chipman, Spanish Texas, 127-129.

7. Austin, "Municipal Government," 285-288, 294; Castañeda,

Our Catholic Heritage 3: 225-232; Chipman, Spanish Texas,

129-131.

8. Chipman, Spanish Texas, 135-137; de la Teja, San Antonio,

18-19.

9. Austin, "Municipal Government," 294-297; Castañeda, Our

Catholic Heritage 2: 299.

10. Castañeda, Our Catholic Heritage 2: 301-304, 307-308;

Chipman, Spanish Texas, 136-137; de la Teja, San Antonio,

47-48.

11. Castañeda, Our Catholic Heritage 2: 307-309; Chipman,

Spanish Texas, 136-137.

12. Recopilación de las Leyes de las Indias, 1774 ed., Book

4, Title 5, Law 6; Book 4, Title 9, Law 13, cited in Austin,

"Municipal Government," 300-305; Chipman, Spanish Texas,

137.

109

13. Chipman, Spanish Texas, 137-139.

14. Ibid., 139-140.

15. Ibid., 140-141.

16. Ibid., 145; de la Teja, "Indians," 87-91.

17. Chipman, Spanish Texas, 173-186.

110

CHAPTER 6

WOMEN=S STATUS IN CASE LAW FROM

SAN FERNANDO DE BÉXAR

The people of San Fernando did not prosper quickly. A

description of the community in 1740 mentioned wretched

huts, called jacales, as living quarters for most of the

settlers, though some had built stone shelters. No public

buildings had been erected because there was no time for

anything other than trying to survive on the harsh frontier.

There was no surplus food, generally regarded as a requisite

for civilization, and little or no education among the

populace. In short, this was an exceedingly poor community,

situated on the outlying fringe of civilization. It was

barely surviving, but it was Spanish. The populace,

therefore, found the time and energy to sue each other.1

The Spanish were not only litigious, but quite diligent

in their record-keeping. All official events, including

lawsuits, would be recorded in detail. The surviving

documents from San Antonio de Béxar are contained in the

Béxar Archives. Though women were a part of the San

Fernando community from its founding in 1718, there is no

111

case law recorded in the Béxar Archives regarding women

until the year 1735, four years after the Canary Islanders

arrived. A study of this case law suggests that Spanish

women on the frontier enjoyed all the privileges and

protections established by the Partidas and the

Recopilación. The legal capacity of women is partially

substantiated by their ability to grant powers of attorney

to those who conducted business for them in far away places.

Women could buy and sell both personal and real property on

their own; they could also be held and hold others to their

contracts. Further, they could be held liable for their

actions, both civil and criminal. Women were witnesses in

both civil and criminal trials, and their testimony carried

just as much weight as that of men. These women made wills

and were executors of wills. In short, the Spanish legal

system translated well to the frontier situation with little

modification of the traditional rights enjoyed by women in

Spain or in the more settled regions of New Spain.

There were few, if any, lawyers on the Spanish

frontierΧapparently none in TexasΧso it was the custom for

people who had to transact business in a far distant place

to appoint a friend, relative, or well-known businessman to

protect their interests there. This grant of the power of

attorney was used by both men and women, though usually only

112

men received such powers. Power of attorney was made by

following a form, as is evident from the fact that the

wording of all such grants is almost identical. Women

apparently granted this power often enough that special

wording was incorporated into the form when it was conferred

by them. This extra wording included the renunciation by

the woman of all special protections due her by law because

of her sex. In essence, she had entered the man's world of

business and agreed to be as responsible as a man for her

actions, and she could not claim later that she did not know

what she was doing.

Most of the grants of power of attorney in the Béxar

Archives were made by widows. In 1743 doña Rosa Flores y

Valdés, widow of Captain don Joseph de Urrutia, and her

children gave power of attorney to don Juan de Angulo of

Mexico City to settle the affairs of the deceased. Don

Angulo must not have done a very good job, because in 1745

doña Rosa revoked that grant and gave power of attorney to

don Joseph de Plazas of Boca de Leones to settle their

claims. In both cases, she renounced all laws that favored

women. Another widow, doña Josepha Flores y Valdés gave

power of attorney to don Francisco de Liñán to settle the

estates of both her (deceased) husbands, since both died

intestate. She also renounced all laws in favor of women.2

113

Married women could also grant power of attorney. In

1770 Raphaela de la Garza gave power of attorney to her new

husband, Francisco Flores de Abrego, to act on her behalf.

This action would have been impossible under English common

law, since that legal system assumed that the husband had

total control over all his wife's property. Under Spanish

law, the wife had to swear that she was not compelled,

persuaded, nor forced to give this power to her husband but

did so of her own free will. This one-page document

demonstrates that Spanish married women had control over

their own property, that they did not have to give it up to

their husbands, and that furthermore it was uncommon for

them to do so. It also shows that married women did

sometimes grant this power to their husbands, because there

was a standard form for such a transaction.3

Brothers and sisters could join in granting power of

attorney. In 1744 don Francisco Maldonado, doña María

Maldonado, Luis Maldonado, and Juana Francisca Treviño gave

power of attorney to their uncle in Saltillo to settle

claims regarding land inherited from their mutual

grandfather. Again, the use of a form is evident. This one

reads, Α[t]he said women grantors renounce the laws

relative to and in favor of women in order that they may be

compelled to comply≅ with a possible future court order.4

114

Women had to renounce laws in their favor in order to

buy and sell property. The only instances in the Béxar

Archives of personal property being sold under a contract

are formal agreements for the sale of slaves. Black slavery

was common throughout New Spain, but it was relatively

scarce on the frontier, probably because of the poverty of

the inhabitants. The ownership of slaves was regulated, as

was every part of Spanish life. In slave sales, the

ownership history of the slave had to be of public record,

in order to establish that this person was a previously

owned slave. For example, in 1743 doña Josepha Flores y

Valdés5 sold her slave, Luis, to Lt. Colonel don Justo Boneo

y Morales, the governor and captain general of Texas. The

document includes the information that she had received the

slave from her late husband, don Miguel Núñez Morillo, and

that the sale was for two hundred pesos cash. At the same

time, Boneo y Morales sold to doña Josepha Flores y Valdés a

slave named Francisco Joseph, whom he got from doña María

Eugenia de Oliva, wife of a Spaniard living in Mexico City.

The price of this slave was 270 pesos in cash.6

Women could not only buy and sell slaves, they could,

if they were of African descent, also be slaves. Slaves, of

course, had very few rights. The female slave, María de los

Dolores, was bought from doña María Fernández de Castro.

115

This document does not list the name of the buyer, nor the

sale price. It seems that only the ownership history needed

to be recorded. A more complex case was that of María

Gertrudis de la Peña, an Indian native of Camargo. She was

owned by two men before being sold to don Angel Navarro.

María Gertrudis claimed that she was supposed to have been

regarded as a daughter to her first owner, but became

pregnant by him when she was sixteen. She was then sold to

her second owner, supposedly to be treated as a daughter,

not as a slave. She was happy there until her owner got

angry at her and took away all her clothes. Her testimony

stated that Navarro promised her that if he bought her and

she worked for him for three years he would free her. She

agreed to this arrangement, but after entering his

household, she believed that he treated her badly, so she

brought suit against him to be freed immediately.7

Since Spanish law specified that Indians could not be

enslaved, the judge, Governor Domingo Cabello, declared

María free and not bound in any way to Navarro. The court

advised her to return to her own people. By Spanish law

Indians had most of the rights of Spanish people, and the

laws protecting Spanish women extended to cover Indian women

as well. If María had grown up in a Spanish community, she

would have been familiar with her rights and known that she

116

could not be enslaved. The court also seems to have taken

the facts into account and used the laws that brought the

most justice to the plaintiff. Spanish officials appear to

have been very protective of helpless women, even if the

woman was an Indian.8

There was no question that women, married or widowed,

could own land. One of the inducements for people to move

to San Fernando was free land: a person simply had to

petition the cabildo for a lot and live on it, or otherwise

improve it, in order to own it in fee simple. Usually the

husband, as head of the household, would make the petition

and hold title to the land, but this was not always the

case. In 1745 Tomasa de la Garza, describing herself as a

vecina agregada, or original resident, petitioned on behalf

of her husband, Gabriel de los Ríos, for a lot on which to

live. In the petition, she cited the fact that their eight

children, including one widow, lived with them. She was

granted title; she performed the acts of possession. She

Αdug in the ground, threw earth, pulled up the stakes,

marked the boundaries, and performed all the other

ceremonies necessary according to law, as the legitimate

owner, holder, and possessor of the said town lot.≅9

Once the petitioner had lived on the lot long enough to

have clear title, the land could be sold. Again, there is

117

absolutely no question that women could buy and sell real

property, provided that they renounced all laws in favor of

women. In 1746 doña Juana de Urrutia, widow of don Ygnacio

González, sold land to don Diego Ramón. The lot was

described as fifty varas square, fenced with a board fence

on two sides, with sixteen peach trees, and included a house

with all its improvements. The price was five hundred

pesos. The deed followed the same form as all deeds

executed by men, except that it included the now familiar

clause that Doña Juana renounced all laws favorable to

women.10

The hazards of life on the frontier, especially for

young men, led to widowhood for many women. Many of the

women selling land were widows, and this status was so

stated in the deed. Much of the time the marital status

does not seem to have been included for any legal purpose,

but merely to identify the woman more precisely. Gertrudis

de la Garza, widow of Martín Saucedo, sold to don Alberto

López a lot with fruit trees on it. In this case, the

husband had contracted the sale before his death, and his

widow was completing the transaction. She still had to

renounce all laws in favor of women. Gabriela de los Ríos

sold Juan Joseph Villegas a fenced lot on the acequia for

one hundred pesos. No mention was made of her marital

118

status. Doña Josepha Flores y Valdés bought land near the

presidio from Joseph de Montemayor for fifty pesos. No

mention was made of her marital status, either, but in other

places she was listed as a widow.11

A husband could not sell land belonging to the married

couple without the consent of the wife. Don Manuel de Niza,

with the express permission of his wife doña Sebastiana de

la Peña, sold land to don Thoribio de Urrutia in 1748.

ΑWe≅ was used throughout the deed of sale, and in addition

to renouncing all laws in favor of women, doña Sebastiana

separately averred that she was not intimidated by her

husband.12

Normally, the husband would represent his wife's legal

interests. In 1770 don Francisco Caravajal brought suit on

behalf of his wife, doña María, to regain land. The first

owner of the lot, Mateo de Caravajal, grandfather of María

had received it from the crown. Mateo built a house on the

lot and lived there. One of the town's mayors gave part of

this land to two brothers, Andrés and Francisco Hernández.

Andrés sold his portion to his niece, doña Josepha

Hernández, and Francisco sold part of his parcel to Joseph

Caravajal, son of Mateo, who should have had all the land by

right of inheritance.

119

As part of this suit, Josepha Hernández claimed that

she did own part of the land and that the title was in the

town's archives. Doña Josepha signed her own name to this

document. One of the witnesses, doña Juana de Oyos, was

also supposed to have signed her own name, but there is no

such mark in the translation. This degree of literacy was

very unusual in San Fernando, for most people simply made a

mark, and the scribe wrote in their names. The first

decision was in favor of don Francisco, Αhusband and

conjoint person of≅ his wife María. The decision as to the

exact limits of the property was disputed by the defendant,

doña Josepha Hernández. The eventual outcome of the suit

was that the land was recognized as belonging to doña María

de Caravajal. The major peace officer gave possession to

doña María in the presence of doña Josepha, and doña María

walked the boundaries. So even though the suit was brought

by the husband, the land belonged to the wife.13

A married woman did face some constraints on her

ability to buy and sell real property. In a suit brought in

1771, Ygnacia de Castro sought to void a contract to sell

her property to her brother, because he had not made any

payments beyond the down payment. Her argument was based on

the lack of a written deed, and her claim that he had acted

maliciously in trying to defraud her of her land. Ygnacia=s

120

brother, Marcos de Castro, claimed that since she was

married at the time of the contract, she could not enforce

it. The court held that the plaintiff's marital status was

Αirrelevant,≅ because the defendant had indeed acted

maliciously. The contract was voided and Ygnacia retained

her land.14

Women often exercised their rights to sue for damages.

Magdalena Leal owned a reed field that was damaged by

Vicente Amador's horse. Vicente belied his surname when he

attacked the deputy who told him to retrieve his mare and

pay the damages. María de Caravajal, as part of the suit

mentioned previously to regain her land from the Hernández

family, brought suit on her own for damages resulting from

the defendant's use of the land during the lawsuit. Doña

Josepha Hernández answered the order to stop building on the

land until the settlement of the suit by asking that it be

dropped. She claimed that the land was hers and she could

build on it if she wanted. As noted above, María was given

possession of the land in the presence of Josepha, probably

to forestall any further claims of encroachment.15

Although Spanish law, as well as Spanish men enforcing

it, favored women, this did not mean that women won every

lawsuit that they brought against men. María Eugencia

Rodríguez, a widow, sued to retain land that she claimed had

121

been granted to her husband and was being requested by don

Domingo Delgado. She wanted her title ratified so that he

could not seize her improved land and force her onto the

unimproved portion. Witnesses were called to testify as to

the original grant to her husband, and they all agreed that

what she was claiming was not part of the original grant.

The court ruled that she had no title to the land, and the

municipal council granted the land to Delgado.16

One of the earliest suits in the Béxar Archives was

filed by Antonia Lusgardia Hernández. She petitioned

governor and Captain General don Miguel de Sandoval for the

return of her son from don Miguel Núñez. She had been

working for don Miguel for eight or nine years for no

salary, and had left because of poor treatment and because

he would not give her any clothes. She had a daughter

before she went into service and had a son while she was

there. When she left, she claimed that don Miguel took away

her son, Αthe only man I have and the one who I hope will

eventually support me.≅ She threw herself on the mercy of

the court: ΑI being but a poor helpless woman whose only

protection is a good administration and a good legal

system.≅ Although she could not name them, she asked for

the protection of all laws in her favor.17

122

Don Sandoval, no doubt proud that being the good

administrator of a good legal system enabled him to help

this poor woman, ordered the boy returned. Don Miguel

agreed to comply with the order, but replied that the boy

Ignacio had left his mother of his own free will in order to

be with his godmother, doña Josepha Flores, who happened to

be the wife of don Miguel. Don Miguel claimed that Antonia

gave the boy to doña Josepha and renounced all her rights to

him, so she should not get him back. Don Miguel also

claimed that he wanted merely to protect the boy, who had a

good, spiritual relationship with his godmother.18

This case does point out the value that the Spanish

placed on family, whether as a support for a Αpoor helpless

woman,≅ or as a godson. Nowhere was the parentage of the

boy asked. Apparently, the identity of the father was not

important to the disposition of the case. This case also

shows that even a very poor woman knew her legal rights and

was not afraid to go to court to enforce them. Spanish

women living on such an isolated frontier must have passed

on the knowledge of their rights from mother to daughter,

and between friends.

Not every familial relationship was so loving,

especially where property was involved. Raphaela de la

Garza brought suit against her own son, Joseph Antonio

123

Curbelo. She stated that he had come into her house

claiming that since she had remarried, her new husband

should provide her a new house and that they should leave

this one, which had been his father's, to him. The son then

tried to kill the second husband with a sword. He counter-

claimed that his mother and her second husband had tried to

put him out of his own house. For that reason, he armed

himself with the sword. He also asked for his father's will

to be probated so his step-father would not spend all his

inheritance. The outcome of this case is not contained in

the archives.19

Since women had every right to dispose of their own

property, they also had the right to use wills to dispose of

property after their death. The earliest woman's will and

testament found in the Béxar Archives is that of María

Melián. Her will, dated December 3, 1740, was typical of

Spanish wills of that period. She first directed that two

reales be donated to the Holy Church of Jerusalem to ransom

captives and help orphan girls. Doña María had been married

twice, so she stated that the only property that had been

brought into the second marriage was one cow, which had

given birth to four offspring during her second marriage.

One of this cow's offspring was to be given to the youngest

daughter, and one given to her son from her first marriage.

124

Her other children were to be given cows from the five she

had received for settling in San Fernando. All the rest of

her property was to be divided equally among her children

from both marriages.20

This will sheds light on several aspects of property

ownership under Spanish law. The gift to the church came

first, before any other property was distributed. Next, she

divided her property into what was hers by right of

settlement, and what came to her in each of her marriages.

A Spanish marriage was ganancial in naturemeaning that the

people entering into it expected to make material gains

during the marriage, and that these gains would be the

result of both their efforts. Therefore, any gains accruing

during the marriage would be split evenly between the

marital partners. The one cow that she brought into the

second marriage was her own personal property. Its

offspring during the marriage would be divided equally

between her and her husband, therefore she devised two of

the four offspring to two of her children. The one given to

her youngest daughter was probably intended to form part of

her dowry, and the one given to her eldest son might have

been motivated by the fact that he would not inherit from

her second husband, or it might be simply because he was her

eldest child.21

125

All her children shared equally in the rest of her

estate. There was no differentiation between male and

female offspring in the division of the remainder of her

estate. This lack of prejudice against females was very

different from what would have been the case under English

common law, where males, especially the first-born son,

would have received the bulk of the estate. Men and women

were both vital to the survival of the community on the

Spanish frontier, and Spanish wills demonstrate this.

The will of Mateo Pérez, though undated, was probably

written in 1746 or 1747. Don Mateo was apparently a wealthy

man by San Fernando standards. The first several items in

his will were a list of debts owed to him by various people.

Gertrudis de la Cruz, wife of Joseph Lizardo, owed him

sixteen pesos for material. Note that she owed him, not her

husband owed him, even though the husband's name is used for

identification purposes. This case nicely illustrates that

married women were responsible for their own debts. Dominga

(no last name) owed Mateo eight pesos, four reales.

Gertrudis, widow of Joseph de Sosa, owed him twelve pesos.

Ana García (marital status not mentioned) owed him six pesos

in corn.22

After listing the debts, Mateo explained that his sons

had already been given horses, so he bequeathed an

126

equivalent amount of money to his daughter, María Antonia.

This practice was very common. Sons and daughters would

receive their expectancy during the parent's life, and it

would be deducted from what they received through the will.

In this case, Mateo's sons had each been given a horse as

part of their expectancy, so the daughter received the value

of a horse in cash from the estate in order that all would

inherit equally.23

Family was very important to the Spanish, regardless of

legitimacy and regardless of actual parentage. Mateo

bequeathed the same amount of money to Rosa Pérez, a mestiza

(part Spanish and part Indian) who was born in his house and

raised as his daughter, and he also left her six breeding

cows. Rosa's son Joseph María received two breeding cows,

two horses, and a saddle. Even the servant who was not

considered part of the family, María de Zaragoza, received

six cows and a bull. The legitimate children, not including

Rosa, shared equally in the bulk of the estate. This

distribution shows that Mateo wanted all his family to

benefit from his estate, and to do so as equitably as

possible. Bequests to illegitimate children and non-family

members were made explicitly, as otherwise they would not

share in the estate. In this will, horses were given only

to men, while cows were given to both men and women. The

127

bulk of the estate was divided equally between Mateo's

legitimate sons and daughters.24

The contrast between this disposition and one that

would have been made under English common law is immense.

Under English law, Mateo's eldest son would have inherited

almost all of the estate. Younger sons would have received

small portions, and the legitimate daughter might have

received a portion as her dowry. Most likely, the

illegitimate children and servant would not have been

included at all. English common law will be discussed more

completely in the next chapter.

Sometimes, of course, the distribution of property

through a will did not happen amicably. Suits to force

distribution of estates, and to challenge distribution of

estates, were common in San Fernando. One fairly simple

suit was that by a widow to prove she was the only heir of

her husband. His will stated that she was his lawful wife

and that their children would be his heirs after her death.

In other words, he left her a life estate in his share of

the community property. His will stated that all he owned

was gained through the marriage, so that he had no separate

property to divide. That this suit was brought at all shows

that the children did not want to wait for the death of

128

their mother to receive their share of their father's

estate.25

Suits would also be filed to settle the estate where

the person died intestate. In 1771 Matías Guerra filed a

suit against Juan Ignacio Guerra to divide their father's

estate. Cayetano Guerra had not left a will, so his

legitimate daughters Rosalia, Bernarda, and Antonia, and his

legitimate sons Matías and Juan split the bulk of the estate

equally. Special bequests, in the form of silk shirts, were

given to Cayetano's two illegitimate daughters. All

interested parties attested that they were agreeable to the

division, with husbands signing for their wives. Again,

family was important. Even illegitimate daughters shared in

the estate.26

When there was no will, and land was involved in the

deceased's estate, a suit could be filed to determine the

eventual disposition of the land. Such an amicable suit to

settle land ownership was filed so that mutual heirs would

be able to sell land to a third party. Here a copy of the

entire proceeding was given to the eldest sister, so that

the family would have a record and not bring any more

suits.27

The criminal cases in the Béxar Archives do not often

involve women. When women were part of a criminal trial, it

129

was usually as witnesses. For example, when Quiteria

Múzquiz was called as a witness in the murder trial of the

Indian Andrés, she took the same oath as the male witnesses

and her testimony held the same weight as theirs. Even the

Indian wife of Andrés was sworn in through an interpreter

and allowed to give her testimony.28

The record of the one criminal case during this time

period where a woman was imprisoned tells of murder and

adultery. It is very enlightening about the change in

Spanish attitudes toward these crimes on the frontier. Juan

de Sosa was accused of murdering Diego Menchaca. Sosa

confessed to the deed, but claimed he did it because

Menchaca was committing adultery with his (Sosa's) wife.

Under Spanish law, this would be a complete defense to the

charge of murder, but the wife would then be held guilty of

adultery. Therefore, when Juan made this defense, his wife

Gertrudis Barrón was arrested, shackled, and imprisoned.

However, the charge brought against her was not adultery,

but that her actions had led to the murder of Diego and that

she was therefore responsible for his death. Juan de Sosa

was set free when it was determined that he did, in fact,

act to defend his wife's honor. Gertrudis was also freed,

and no charge of adultery was ever brought against her.

130

Apparently, as in Castile, if Juan could forgive his wife,

so could the law.29

This case law illustrates that the traditional Spanish

law as embodied in the Partidas survived the transition to

the frontier mostly intact. That should not be surprising,

since the ideas of the Partidas developed on the frontier of

the Reconquest. Spanish women knew their rights. They knew

that they could own property; that they could buy it, sell

it, inherit it, and be responsible for it. On the frontier

this ability of women to handle their own affairs was

important, since the men were so often away fighting Indians

or on other business.

131

ENDNOTES FOR CHAPTER SIX

1. Carlos E. Castañeda, Our Catholic Heritage in Texas 1519-

1936 (7 vols.; Austin: Von Boeckmann-Jones, Co., 1936-1958)

3: 90; Donald E. Chipman, Spanish Texas, 1519-1821 (Austin:

University of Texas Press, 1992), 139.

2. Béxar Archives Translations (BAT), microfilm, 26 reels;

reel 2, vol. 10, 95-99, 117-119, 169-174.

3. Ibid., reel 7, vol. 48, 76; Joseph W. McKnight, ΑLaw

Books on the Hispanic Frontier,≅ Journal of the West 27

(April 1988): 74-84.

4. BAT, reel 2, vol. 10, 114-116; McKnight, ΑLaw Books,≅

74-84.

5. BAT notes that this woman's real name was María Josepha

Flores.

6. Randolph B. Campbell, An Empire for Slavery: The Peculiar

Institution in Texas, 1821-1865 (Baton Rouge: Louisiana

State University Press, 1989), 10-12; BAT reel 2, vol. 10,

100-105.

132

7. BAT reel 7, vol. 48, 86; reel 6, vol. 45, 85-108.

8. Ibid., reel 6, vol. 45, 108.

9. Ibid., reel 3, vol. 17, 1-6.

10. Ibid., reel 2, vol., 10, 198-201.

11. Ibid., reel 3, vol. 18, 153-156, 145-148, 68-71.

12. Ibid., reel 3, vol. 18, 72-77.

13. Ibid., reel 7, vol. 48, 16-23, 27, 32, 38-39, 65.

14. Ibid., reel 7, vol. 50, 15-21.

15. Ibid., reel 7, vol. 48, 43, 49, 65.

16. Ibid., reel 7, vol. 48, 142-154.

17. Ibid., reel 2, vol. 7, 117-118.

18. Ibid., reel 2, vol. 7, 119-121. The outcome of this

case is not recorded in the Béxar Archives.

19. Ibid., reel 7, vol. 48, 73-78. The outcome of this case

is not contained in the Archives.

20. Ibid., reel 2, vol. 10, 51-55.

21. Joseph W. McKnight, ΑSpanish Law for the Protection of

133

the Surviving Spouse,≅ Anuario de Historia del Derecho

Español, tomo 57 (1987), 373-395.

22. BAT, reel 3, vol. 18, 104-111.

23. Ibid.

24. Ibid.

25. Ibid., reel 7, vol. 48, 74.

26. Ibid., reel 7, vol. 49, 101-103.

27. Ibid., reel 5, vol. 32, 74-75.

28. Ibid., reel 4, vol. 24, 174-175, 183.

29. Ibid., reel 7, vol. 52, 41-116.

133

CHAPTER 7

THE IMPACT OF ENGLISH HISTORY ON THE DEVELOPMENT

OF ENGLISH COMMON LAW

Much as the history of Spain had a great impact on the

development of Castilian law, the history of England shaped

the development of the English common law. The written

history of England begins with the Roman occupation in the

first century of the current era. But, as was the case in

Spain, the Romans left no perceptible impact on the society

or legal systems of the British Isles. By the end of the

Roman era in the fourth century, all that remained of the

Roman presence were the physical structures. Documents,

roads, bridges, baths, and especially Hadrian=s Wall are all

that remain as evidence of two centuries of Roman rule.

The first group of conquerors who left an indelible

impact on Britain were the Angles and Saxons coming across

the Channel from Germany. The Anglo-Saxons ruled England

from about 450 to 1066, and it was from their legal system

that the common law first developed. The early Anglo-Saxons

formed a loose confederation in England with many leaders of

the various groups. Tribal leaders were generally warlords

134

in times of war and community leaders in times of peace.

Even during the few times that the Anglo-Saxons fought under

one king, that king took advice from all the other leaders.

Successful warlords would seize land from other groups and

add it to their own territory, thus increasing the size of

the kingdoms in England while reducing their overall number.

By the seventh century, there were only seven kingdoms;

these gradually merged into three, Northumbria, Mercia, and

Wessex, that acted together in times of duress. The Anglo-

Saxon kingdoms had unified under one ruler just in time to

be conquered by the Normans in 1066.1

Map 5. Anglo-Saxon England

135

The various leaders of Anglo-Saxon England ruled by

virtue of their personalities and accomplishments, and their

subjects obeyed commands out of a sense of personal loyalty.

Early Anglo-Saxon leaders were more warlord or chieftains

than the present-day definition of king, but for the sake of

simplicity, this work will refer to them as kings. The king

was responsible for the whole of his people, and his people

were responsible to him. Over time, the king added to his

personal power by displays of wealth and royalty. Wearing a

crown, sitting on a raised throne, and receiving the homages

of his subject all separated the king from the rest of the

leaders. Once the king became more than a warlord, he had

the obligation to rule his kingdom well. He became

responsible for punishing criminals who violated the king=s

peace and for delivering justice to his subjects. Most

punishments, for crimes and civil remedies, were in the form

of fines paid to either the injured party or to the king, or

to both. Some crimes that the king deemed to be destructive

of society could not be remedied by fine, only by capital

punishment. These crimes eventually transmuted into

felonies, and crimes that could be remedied by fines became

misdemeanors in United States jurisdictions.2

There were several classes and classifications of men

in Anglo-Saxon society, and historians continue to disagree

136

on exactly what each encompassed. One category of man was

the ceorl. Sometimes this class label defined unfree

persons bound to the land, sometimes it described a free

agricultural tenant, sometimes it meant a wealthy landowner.

The ceorl’s wergeld was usually set at two hundred

shillings. A thegn’s wergeld might be 1,200 shillings, but

historians’ descriptions of a thegn vary from a servant boy

to a baron. The difference between free and unfree likewise

is unclear. A man might be technically free but still owe

such duties to his lord that he was unable to exercise that

freedom. A man who was technically bound to the land might

be owed service by a free man.3

The king was usually the best warrior and his men

followed him because they thought he could best protect them

and their rights. The society was a mixture of free and

unfree, with all persons owing obligations of some sort to

other persons. The king was at the top, and various strata

of nobility descended toward the bottom. The king, or lord,

granted rights to his followers. In return, the followers

were loyal to the king. The king protected his people and

in return the people owed military service to the king. So

there was a bond of mutual obligations between the lord and

his men. The king, however, was not yet divine. His right

to rule came from a contract with his subjects. He had

137

special privileges, such as higher recompense for wrongs

done to him, but he was not above the law. When a

malefactor killed an innocent person, the offender had to

pay a fine called the wergeld. This compensation was paid

to the victim’s kin. The higher s person’s status, the

higher his or her wergeld. The king=s wergeld was set so

high that no one would contemplate killing him, because to

do so would bankrupt the malefactor=s family and they would

all be sold into slavery to pay the debt. Non-lethal crimes

could be compensated by the mundbyrd, a fine levied to

compensate for an injury to person or property. The amount

of the fine varied with the status of the injured party.4

The nobility, whether thegns, eorls, or barons, owed

much the same duties to the people sworn to them as the king

owed to the nobles. The nobles collected duties, taxes,

fines, and military service from their men and paid those

same debts to the king. The reality of each noble=s duties

and rights varied because each came from a personal contract

with the king. The nobles who were closer personally to the

king usually got more rights and fewer duties than those who

were out of favor or far away. All nobles had the right and

duty to keep the peace within their realms. They settled

disputes and dispensed justice in their lands much as did

the king for the whole kingdom.5

138

Local justice may have been pronounced by the local

lord in court, but in reality it was enforced by the men of

the area. These people all knew each other, knew the value

of each man=s wergeld and mundbyrd, and knew the character

of each of their neighbors. Most freemen were subsistence

farmers; few commercial transactions took place. In an

illiterate society, transactions that did occur had to be

witnessed in order to be valid. For example, when a man

went to another town to buy a cow, he would first announce

his intention to his neighbors. In the town where the

transaction took place, the men of the area would witness

the sale so that all would know the sale was legitimate.

When he returned, he would show the new cow to the same men

in his hometown so that all knew the cow was his. If the

purchase was not planned ahead, the buyer would put his new

cow in the common pasture for all to see and announce it was

his. The common memory of all who witnessed the transaction

would form the basis of testimony in court, should that be

necessary.6

Of all the crimes mentioned in the various dooms

(laws), rules concerning theft and the apprehension of

thieves appear more than twice as often as any other crime.

This suggests that the lawmakers were more concerned with

theft and the punishment of thieves than with other crimes

139

and punishments. The next most numerous laws deal with

assault and killing. All honest men had the duty to

apprehend offenders and had to pay a fine if they let the

suspect escape. The only defense would be to prove that

they did not know that the person involved was a malefactor.

The prevalence of laws on theft show the importance of

property to the Anglo-Saxons, and the fact that all crimes

could be punished by fines emphasizes that the thrust of the

law was on the protection of property. The fact that the

fines were paid to the injured party demonstrates that the

penalties were private compensation for wrongs done to a

person. Later, crimes would be seen as being offenses

against society and punishments would be for the public

benefit.7

One aspect of Anglo-Saxon law that did not carry over

into the Norman era concerned the relationship of husband

and wife. Spouses were not considered to be related to each

other. This fact is shown in the wergelds. As mentioned,

wergelds were the price to be paid when a person was killed,

which would be paid to the deceased=s kindred. Kindred was

extremely important to that society and feuds often started

from avenging a wrong done to some kin. When a wife was

killed, her wergeld went to her birth family, not to her

husband. If a husband killed his wife, he had to pay her

140

wergeld to her kin. If a wife committed a crime, her kin,

not her husband, had to pay her fine. This Germanic

tradition did not give ownership of the wife to her husband.

Instead, *even in marriage she remained her own person with

her own rights, privileges, and responsibilities. This

attitude that wives did not belong to their husbands changed

with the advent of Christianity in England, and became law

with the institution of Norman legal practices after the

Conquest.8

As the status of a man determined the fine due when he

was injured, so a woman=s status determined the fine due her

for an injury. The dooms of Alfred, king of Wessex from 871

to 899, list numerous fines for various injuries. A man who

stole a woman out of a nunnery, for example, had to pay 120

shillings. This was the equivalent of twenty oxen: quite a

high price and generally impossible for most people to pay.

A man who committed adultery with another man=s wife had to

pay the wronged husband one tenth the amount of his wergeld.

On the other hand, a man who kidnapped a common woman owed

only five shillings. If he took her virginity, he had to

pay another sixty shillings, but if she was not a virgin,

the fine for rape was reduced to thirty shillings, or the

cost of five oxen. This fine was still beyond the ability

of most men to pay. Alfred intended his dooms to prevent

141

crimes by making the fines prohibitively expensive. The

imposition of such high fines for rape suggests that the

Anglo-Saxons valued their women more than did other nations

of Europe which punished rape lightly, or not at all.9

Anglo-Saxon women also took part in lawsuits, both as

litigants and as oath-helpers. About 990 C. E., Wynflaed, a

noblewoman, sued Leofwine for possession of land. King

Ethlered the Redeless heard the case. Wynflaed claimed that

she received the estates of Hagbournes and Bradfield, and

she produced some very high-ranking oathhelpers to back her

up. The archbishop of Canterbury, another bishop, and,

perhaps most convincing to the king, his own mother, swore

that Wynflaed was telling the truth. Wynflaed also produced

thirty-six witnesses to the transaction who were willing to

swear for her. The king, convinced by the preponderance of

the oathhelpers, awarded the land to Wynflaed.10

In a case during the reign of King Canute, a shire

court heard another case involving a woman=s ownership of

property. Edwin sued his mother Enneawnes for two estates.

None of the court knew the particulars of the case, so they

asked for witnesses. The people who knew most about the

case were the kin of Edwin and Enneawnes. Thurkel the

White, husband of Enneawnes=s kinswoman Leofflaed, stood up

for Enneawnes, but could not swear that he had witnessed any

142

transactions. Therefore, the court ordered him and three

thegns to ride to Enneawnes and find out what happened.

Enneawnes swore to them that she had never given her son

Edwin any of her land, but that she had given it to

Leofflaed, her kinswoman. The thegns were convinced, and

the court awarded the land to Leofflaed. Here is a case,

then, of a woman (Enneawnes), marital status unknown,

selling land to a married woman (Leofflaed). The role of

Thurkel the White, husband of the eventual landowner, was

only that of witness: none of the land belonged to him.11

Inheritance laws also followed Germanic custom. A man

usually left the bulk of his land to his eldest son, with

personal property going to his daughters; but if he had no

sons, his daughters inherited the land. Few records remain

on marriage cases from that era. Most cases concerned the

disposition of marriage gifts where the wife had died before

bearing children. Anglo-Saxon women, married, single, or

widowed, had complete ability to own, buy, and sell land.

They could also dispose of it in wills, the same as men.

That would change with the Norman Conquest.12

The Normans ruled England only from 1066 to 1154, but

they left an indelible mark on the society and its legal

system. The Norman rulers were William the Conqueror (1066-

1087), his sons William Rufus (1087-1100) and Henry I (1100-

143

1135), and the chaotic rules of Stephen, Matilda, and the

years of anarchy (1135-1154). The Norman concept of

kingship was more developed than that of the Anglo-Saxons

had been. Where the Anglo-Saxon kings ruled by personal

charisma and ability, Normans ruled by divine right.

Normans imposed their institutions upon England, especially

the system of vassalage.13

The Norman kings ruled absolutely. Though they had

advisors, they did not have to follow their advice. The

Normans brought the concept of divine-right kingship to

England. They wanted their government to be strong and

their subjects to be obedient. The Normans retained those

parts of the Anglo-Saxon government that they found useful,

but made them more efficient. Fines imposed for violations

of the king=s justice and fees paid by vassals for certain

privileges all came into the king=s treasury. As the king=s

need for money increased, so did the fines and fees.14

The Angevins, who ruled England from 1154 to 1216, also

placed high emphasis on a strong king and the complete

obedience of the subject. Henry II, who ruled from 1154 to

1189, was one of England=s most accomplished kings, and

definitely the greatest of all the medieval English kings.

He brought peace to the land and efficiency to his

government. His son Richard the Lion Hearted is more

144

famous, but actually was an inept ruler. Richard=s interest

in personal glory and the crusades far outweighed his

interest in the backwater country of England. Although he

ruled for only ten years, he managed to bankrupt the country

with his incessant need of money to finance his military

exploits. His brother John is also one of the more famous,

or infamous, English kings. His attempts to wring more

taxes out of the barons to send to Richard, and his

unwillingness to compromise, ended with his barons forcing

him to sign the Magna Carta in 1215. Civil war soon

followed and in 1216 John died, leaving his young son Henry

as the next king.15

Henry II is usually regarded as the founder of English

common law. He began with the customary law and procedure

already in place and used his royal prerogative to mold it

into a complete legal system. These changes came not from

legislation but from administration; few laws were passed

during his reign, but administrative orders changed the

judicial procedure, organization of the courts, and even the

substance of the laws. Henry II=s reign corresponded with

the rise of universities and the revival of Roman law, and

he surrounded himself with educated advisors. His own

motives, though, were not simply to spread justice

145

throughout his kingdom. Henry was more interested in the

accumulation of income to his treasury.16

Legal procedure changed during Henry=s reign. The jury

under Anglo-Saxon law was a group of freemen who knew the

parties and the facts of the suit. They judged the outcome

of the trials by combat and by ordeal. Under the Normans,

these bodies continued to be an evidence-giving group.

Under the Angevins, the jury became a truth-finding body; it

heard the evidence and declared who was telling the truth.

Jury trials became the accepted practice under Henry II.

The other major change in the legal procedure was the grand

assize, instituted by Henry II. Under this rule, a

defendant could decline trial by combat or ordeal and have a

jury hear evidence to decide the case. In criminal cases,

too, grand jury indictments and jury trials became common.

The rationality of this type of court procedure quickly

overcame the traditional methods of ordeal and combat,

though both remained in infrequent use until the nineteenth

century.17

The next English king who concentrated his efforts on

the legal system was Edward I (1272-1307). He focused on

improving the financial condition of the kingdom by

increasing the tax base. The early royal household position

of the wardrobe developed from a simple clerical post into a

146

mighty treasury. This unofficial treasury department,

unlike the official exchequer, was not under the control of

the barons. It was used by the king as a war chest and

supply center for his military. The official taxes grew, as

well. New taxes on personal property soon exceeded the old

fees of scutage, tallage, and carucage. Edward also

instituted a customs tax on wool. All these taxes, though,

had to be obtained by the consent of the taxed, and this

would lay a great foundation for the English Parliament.18

The thirteenth century saw the codification of the

majority of the English common law. Edward I=s numerous

statutes regularized and systematized the complex and

contradictory laws from various parts of the realm. The

common law of England included the royal prerogative, the

statutory law, and the common law, or Αthat which has

always been law.≅ It did not include special laws for

specific and unusual circumstances. Most of the common law

developed at the hands of royal judges as they heard cases

throughout England. Judges could follow precedent or

establish new rulings; during the reign of Henry III they

often established new remedies, and so created new laws.

Almost all of these judges were well educated, knowledgeable

in canon and Roman law, as well as common law. The most

famous lawyer and judge of medieval England was Henry de

147

Bracton, who wrote Concerning the Laws and Customs of

England in the 1250s. He emphasized that the law should

follow precedentΧnamely, that a case should be decided

based on how previous cases like it had been resolved. He

declared that the law made the king, not vice versa.

Bracton also emphasized intent as a necessary component of

any misdeed. Bracton=s work became the basis for the common

law until replaced by Blackstone in the eighteenth

century.19

The system of vassalage that came from the Normans

assumed that all land was in service to the king. The

theory was the he gave his vassals the possession and use of

some of his land in return for their service, usually

military service. The rights of ownership were often called

seizen, because the person “was seized of” the land. These

rights varied between people and over times, and often

existed in layers, so they are difficult to classify. When

the vassal died, his heir could usually inherit the

possession and usage of the land, if he paid a fee to the

king. As the nobility increased their power, they persuaded

the kings to give them more permanent grants of land. Power

and wealth came from the land, and the nobility wanted to

keep their lands in their possession forever.20

148

The rule of primogeniture, where the eldest son

inherited all the lands of the estate, came into use in

England to protect the family powerbase. Younger sons could

not inherit the lands of the father’s estate. In 1285 the

law De donis conditionalibus allowed the estate tail,

meaning that ownership of the land was limited in some way.

Usually, the ownership was limited to the heirs so the

estate did not escheat to the king upon the death of the

vassal. The intention was to prohibit the sale of these

lands so they would descend to the heirs. Lawyers gradually

created means of getting around entail and allowing free

alienation, or sale, of the land.21

The concentration of power in land makes England’s

legal system very different from Spain’s. In Spain during

the centuries of the Reconquest, there was always enough

land for everyone, so law did not develop to protect it, as

happened in England. Entail and primogeniture did not have

the force in Spain that they did in England. In Spain, the

king never controlled all of the land; the nobles acquired

their lands through their own conquests, so feudalism never

developed to the extent it did in England or France. The

Spanish never held the ownership of land in as high esteem

as did the English. The Spanish laws developed instead to

protect the Spanish community.

149

One important concept that developed in England during

this time was the idea that personal property could be

separate from real property. Until the twelfth century, all

personal property belonged with the real property to which

it was attached. The landowner would bring suit for the

recovery of a cow that had been misappropriated, and be paid

back with a cow. The use of cattle as a method of payment

was so common that the word meaning cattle, Αchattel,≅

became the word to describe personal property. By the

thirteenth century, compensation for damages became payments

in cash instead of in kind.22

Inheritance laws had been codified in the reign of

Edward I. Real property could not be disposed of in a will:

it passed by feudal custom to the next tenant. Personal

property, on the other hand, could be devised by will. If a

man=s wife survived but there were no children, she received

half of the personal property. If the children survived but

not the wife, then they received half of the property. In

each case, the other half went to the church as compensation

for prayers in behalf of the deceased=s soul. If both wife

and children survived, each received one-third, with the

rest to go to the church. If the deceased left a will, the

church executed it according to canon law.23

150

During the fourteenth and fifteenth centuries, common

law developed and became more elaborate without changing its

essential nature. The rules of pleadings and procedure

became tortuously complicated. Judges who had studied the

law became the men who wrote the law, and they did it by

delivering decisions based on precedent and pleadings. The

common law became so highly structured that it was

frequently impossible to achieve justice in its courts.

Eventually the Courts of Chancery heard cases in equity and

dispensed their opinions based on fairness, not complicated

procedural issues. These chancery courts, however, were

expensive and therefore their use was limited to the rich.24

William Blackstone made common law accessible to

lawyers both in England and in its colonies in North

America. He was born July 10, 1723, in London, to a merchant

family. In 1741 Blackstone began his study of law in the

Middle Temple; in 1744 he became a fellow of All Souls

College at Oxford. He did not achieve fame by practicing

law, but by becoming a professor of it. Before his classes,

the only law taught in universities was canon law. The

lawyers-in-training learned common law by rote in the

various Inns of Court in London. In these Inns, public

houses where they lived, students memorized cases and

practiced arguing them until their peers decided they were

151

ready to practice before the court. Blackstone changed this

procedure. He lectured for years on English common law,

then wrote his lectures down in four volumes entitled

Commentaries on the Laws of England.25

In these four volumes published in 1765, Blackstone

reduced English common law to its essentials. By owning and

reading this work, any reasonably intelligent man could

begin to practice law in either England or America. Often,

in America, this work was the only law book in a lawyer=s

office, or even in an entire city. Because his work was so

easily understood, and so practical, it became the common

law as practiced in America. When states would adopt the

common law of England, they meant that they adopted the law

as found in Blackstone=s Commentaries.26

In Commentaries, women's legal status was defined

clearly. It depended almost entirely on her marital status,

because married women had very few rights. Blackstone

declared that Αthe husband and wife are one person in law:

that is, the very being or legal existence of the woman is

suspended during the marriage.≅ The husband could sell all

of his wife's property without her consent, because

everything she had belonged to him. A married woman could

not make a will without her husband's consent, and even a

widow could not make a will unless her husband had consented

152

during his lifetime. A married woman's existence was

Αcovered≅ by her lord and master: this is where the term

coverture originated. During a woman's coverture, i.e.,

during her marriage, she disappeared to the law, leaving her

husband in total control of her person and her property.

The adage most commonly quoted is that, under English law,

during the marriage, the husband and wife were one, and the

husband was the one.27

Under English common law, a woman's marital status

defined most of her civic rights. A single woman had almost

the status of a man, but in practice few women remained

single. A young woman's property would be handled by her

father, and a spinster's property would usually be handled

by some male member of her family. A widow had more

freedom. She could handle her own affairs for the most

part, but the tenet of common law controlled any property

she inherited from her husband. Rich women had more freedom

than poor ones, because under the equity courts a rich wife

could set up a separate estate apart from her husband's

influence. Chancery Courts, a separate institution from the

regular court system, decided cases by equity rather than by

the common law. They could either be a court of primary

jurisdiction or as a form of appeal, since England had no

true appellate courts. A person who lost his or her case in

153

the common law courts could have the case retried in equity

courts, which were not bound by common law but by justice.

This process was very expensive, however, and was usually

for the protection of her family's wealth rather than for

the woman=s own benefit.28

Unlike Spanish law where sons and daughters inherited

equally, under English law only sons inherited real

property. A husband owned all, not half, of the increase

from a wife's separate property, and could dispose of it as

he wished, because all of her property became his upon

marriage. A widower inherited all of a wife's estate, but a

widow only received a life estate in one-third of the

husband's estate. A wife could not bring suit in her own

name except where the husband had absconded. A wife could

not be sued without making the husband party to the suit,

because she had no existence separate from him. A married

woman could not make contracts, buy or sell land, or do

business of any kind during her coverture. All such acts

were void by law unless approved by the husband. Blackstone

said that these laws were for the wife's protection because

she was the favored sex in England. Eminent Virginia jurist

St. George Tucker, who annotated the American version of

Blackstone=s Commentaries in 1803, indicated he would not

equate Αfavored≅ with Αdiscriminated against≅.29

154

Interpretation is, of course, a favorite occupation of

both lawyers and historians. Whether society thought that

women wanted or needed legal protection from their own

actions depends on which society is indicated. Susan Staves

points out in Married Women=s Separate Property in England,

1660-1833 that even such an apparently simple issue as the

dower rights of widows can be interpreted several ways if

seen through today=s eyes. Traditionally, a widow received

a one-third life estate in her husband=s lands. When this

right began, all property was real property. Any chattels

were attached to the real property. As England modernized,

different forms of property appeared: trusts, companies,

corporations, etc., could not be part of the widow=s dower.

Thus, dower rights almost disappeared in practice because

wealthy men would put most of their money into trusts so

they could dispose of it unencumbered by dower. Women had

thereby lost a Αprotection≅ of the common law. At the same

time, they gained more control of their separate property

though the establishment of separate estates in equity

courts, and by the invention of Αpin money≅ and separate

maintenance contracts. Whether this was a good change or a

bad one depends on the interpretation.30

155

Staves stresses that all English law regarding marital

property stems from the patriarchal nature of English

society. Society was made up of families ruled by the

fathers, and the leaders of society saw themselves as

fathers to the whole community. This parental role gave

them the authority to regulate what went on within the

private institution of the family. It was in the public

interest to have stable ownership and transference of

property, so lawmakers and judges regulated these areas.

Staves said that the study of these laws convinced her that

there was a cycle regarding marital property. First there

would be societal pressure for fairness in the distribution

of property, ensuring that widows received something for

their contribution to the family. The next stage would be

when men, with the help of lawyers, tried to evade those

societal pressures. These evasions would reach such

proportions as to raise an outcry within society and

legislators would intervene with laws designed to protect

women and the family. All of the English laws governing

marital property served one purpose, according to Staves,

and that was the transmission of property from one man to

the next, with a woman as intermediary only.31

The best work on how English common law regarding the

rights of women to own and control property was interpreted

156

in the colonial and early republic eras in America is

Marylynn Salmon=s Women and the Law of Property in Early

America. She found that while northern lawmakers tended to

believe that husbands would always take care of their wives,

and that therefore legal protections for married women were

not only superfluous but actually detrimental to family

harmony, southern men took a more jaundiced view. The

southern colonies and states passed laws ostensibly to

protect the property rights of married women, because the

southern lawmakers knew that the husband could not be

trusted to act always in the best interest of the wife.

States such as Maryland, Virginia, and South Carolina passed

laws requiring a wife=s consent before the husband could

convey her property. They also passed laws for the creation

of separate estates for the protection of the wife.32

Archival sources suggest that even common people relied

on the precepts of English law to regulate their conduct.

The justices of the peace in Mississippi Territory did their

best to protect property rights. Most of the remaining

records are from suits for debt, with judgments against

defendants and orders to sell their property to pay the

debts owed to the plaintiffs. If a single or widowed woman

did not make good her debts, she could be tried in the

Justice of the Peace Court. For example, Mary McGill owed

157

John and William Payton $20 and they sued her for non-

payment. She did not have enough property to sell to pay

her debt, so the judge ordered that Αfor want of such

affects then take the body of said Mary McGill and convey

her to the jail of said county there to be detained until

the debt and costs aforesaid have been paid.≅ The forms

used, the sentence, and the result were exactly the same for

Mary McGill as they would be for a man in her situation.

Single and widowed women could also sue for debt. Mary

Morris, among numerous other plaintiffs, sued William Scott

for $11. She won and the court ordered his property sold to

pay her debt.33

Married women, however, could not sue or be sued on

their own, because they had no legal identity. Even where

the wife was the actual complainant, the husband had to be

the one to bring the suit. On January 9, 1804, Charles

Coltins, and Sarah, his wife, filed assault charges against

Jeremiah Jones in Jefferson County in Mississippi Territory.

Plaintiff is used as a singular pronoun throughout the suit,

obviously signifying the husband. The defendant=s lawyer

tried to get the charges dismissed, because the complaint

was too vague and did not say where or when exactly the

assault on Sarah occurred. This case is treated exactly as

158

it would have been under English law: the wife suffered an

assault but it had to be the husband who brought charges.34

The Mississippi Territory did allow married women to be

called as witnesses. In the case of Thomas Calvit v. Philip

Alston, James Truly and Elizabeth Truly were summoned to

appear as witnesses. Here the witnesses were treated as two

separate people, with Αthey≅ being used as the pronoun.

Other women, including Frances Odom and Polly Heath, were

also summoned as witnesses. No mention was made of their

marital status, and each was treated separately.35

Wills made and executed during the early national

period showed clearly the influence of English common law.

The will of William Murray is one example. Though Murray

lived in Spanish Louisiana, he had come from Mississippi and

wanted his will to follow the laws there. He left his

widow, Martha, a life estate in all his property, then the

one-fifth that the law allowed him to dispose of would go to

Anna Maria Rumsey, and his son William would be sole other

heir. As far as he could accomplish it under Spanish law,

Murray made his will conform to English common law, shown by

his granting his widow a life estate. He was far more

generous than the common law, though, because he left her a

life estate in the whole of his property, instead of in

merely one-third. Under Spanish law for estates without

159

wills, the widow would have received first her share of the

community property then half of his share of the community,

with the remainder going to his heirs and designs. Spanish

law also dictated that the testator could not dispose of

more than one-fifth of his property to any person outside

his immediate family, thus the one-fifth left to Rumsey.36

English common law developed as England developed. The

laws, court decisions, and procedures all were intended to

bring about peace and stability. The protection of property

rights was paramount and English society thought men were

more capable of protecting those rights. Property rights,

then, were vested in men or were controlled by men, with the

intention that married men would use property wisely for the

benefit of the whole family. This common law came to the

English colonies and spread westward throughout America with

Blackstone=s Commentaries. The southern states especially

kept with traditional laws governing marital property. When

families from these states migrated to Texas, they ran into

a legal system based on very similar precepts but far

different practices.

160

ENDNOTES FOR CHAPTER 7

1. Bryce Lyon, A Constitutional and Legal History of

Medieval England (New York: Harper and Row, 1960), 19-35.

2. Ibid., 36-43. For a complete discussion of the change in

the image of the king, see Ernst H. Kantorowicz, The King’s

Two Bodies: A study in Medieval Political Theology

(Princeton, NJ: Princeton University Press, 1957).

3. Carl Stephenson, “Feudalism and Its Antecedents in

England,” in American Historical Review 48(1943): 254-259.

4. Lyon, History of England, 40-41; Carl Stephenson and

Frederick George Marcham, ed. and trans., Sources of English

Constitutional History: A Selection of Documents from A.D.

600 to the Present (New York: Harper and Brother=s

Publishers, 1937), 22.

5. Lyon, History of England, 36-137; Stephenson and Marcham,

Sources, 14.

6. Lyon, History of England, 73-82; Stephenson and Marcham,

Sources, 20-23.

161

7. Stephenson and Marcham, Sources, 13, 19, 23-24; Lyon,

History of England, 49, 80-82.

8. Lyon, History of England, 83.

9. Ibid., 41, 91-93.

10. Ibid., 94-95.

11. Ibid., 95.

12. Ibid., 96.

13. Ibid., 116-37; R. C. van Caenegem, The Birth of the

English Common Law (Cambridge, U.K.: Cambridge University

Press, 1973), 1-28; John Hudson, The Formation of the

English Common Law: Law and Society in England from the

Norman Conquest to the Magna Carta (New York: Longman,

1996), 86-117.

14. Lyon, History of England, 138-65.

15. Ibid., 228-43.

16. Ibid., 279-80.

17. Ibid., 288-304; van Caenegem, Birth of the Common Law,

29-61; Hudson, Formation of the Common Law, 144-54.

162

18. Lyon, History of England, 370-90. Scutage was shield

money, the money that a knight could pay his liege in order

to be exempt from military service. Tallage was a payment

by town or boroughs to the king in return for his

protection. Both of these were instituted by the Normans as

traditional feudal levies. Carucage was a tax on land

instituted in 1194 and 1198 to help finance Richard=s

campaigns. All these taxes are examples of reciprocal

rights and responsibilities, where a person or community

owed the king in return for his obligation to them.

19. Ibid., 333-34, 431-36.

20. John Hamilton Baker, An Introduction to English Legal

History (London: Butterworths, 1971), 139-42.

21. Ibid., 144-150; Sir Frederick Pollock and Frederick

William Maitland, The History of English Law Before the Time

of Edward I (2nd ed.; London; Cambridge University Press,

1968), 15-19; Lyon, History of England, 633-34.

22. Lyon, History of England, 463.

23. Ibid., 464-65.

24. Ibid., 613-40.

25. The Biographical History of Sir William Blackstone and a

163

Catalogue of Sir William Blackstone=s Works by a Gentleman

of Lincoln=s-Inn (London: published by the author, 1782; New

York: Rothman Reprints, 1971), 1-16; Daniel J. Boorstin, The

Mysterious Science of the Law: An Essay on Blackstone=s

Commentaries (Reprint, Chicago: University of Chicago Press,

1996), xiii-xiv.

26. Boorstin, Mysterious Science, 1-5.

27. St. George Tucker, Blackstone's Commentaries With Notes

of Reference to the Constitution and Laws of the Federal

Government of the United States and of the Commonwealth of

Virginia, (5 vols., New Jersey: Rothman Reprints, Inc, 1969.

First edition Philadelphia: William Birch Young & Abraham

Small, 1803), 1: 378, 418-430.

28. Kathleen Elizabeth Lazarou, Concealed Under Petticoats:

Married Women's Property and the Law of Texas, 1840-1913 in

the series American Legal and Constitutional History: A

Garland Series of Outstanding Dissertations, eds. Harold

Hyman and Stuart Bruchey. (New York: Garland Publishing,

Inc, 1989), 16-19; Tucker, Blackstone 1:443-45.

29. Tucker, Blackstone, 443-445.

164

30. Susan Staves, Married Women=s Separate Property in

England, 1660-1833 (London: Harvard University Press, 1990),

1-10, 27-55.

31. Ibid., 228-30.

32. Marylynn Salmon, Women and the Law of Property in Early

America (Chapel Hill: University of North Carolina Press,

1986), 9-10.

33. Natchez Trace Collection Provincial and Territorial

Records, 1759-1813, Center for American History, University

of Texas at Austin (hereafter cited as NTC), Claiborne Co.,

Dec. 17, 1781; Claiborne Co., Feb 3, 1812.

34. NTC, Jefferson Co., Jan. 9, 1804.

35. Ibid., Aug. 13, 1807; March 1, 1808.

36. NTC, Natchez, Sept. 17, 1795.

165

CHAPTER 8

SPANISH AND ANGLO-AMERICAN LAWS

COMBINE IN MEXICAN TEXAS

The 1820s brought many changes to Texas. The first of

the more important changes was that Mexico, including the

region that would become the Lone Star State, gained its

independence; the second was that an increasing number of

people from the United States immigrated to the area,

bringing with them their English common law background. The

resulting clash of culture, societal mores, and legal

systems would have a far-reaching impact on what was the

province of Tejas.

In 1821 Mexico earned its independence from Spain. The

new leaders of Mexico planned radical changes in their

political institutions. The Constitution of 1824, one of

the most liberal in the world, proclaimed among other ideals

that all persons should be treated equally. Women's rights,

since they were already among the most generous in the world

at that time, remained as they had been under Spanish rule.

A search of legislative archives of both the Mexican

government and the state of Coahuila y Texas suggests that

166

the legislators in neither the federal nor state government

made any moves to alter women's rights.1

Of far more concern to Mexican authorities were the

American immigrants coming into the northern parts of the

new nation from the United States of America. A few Anglo

individuals who had little regard for the niceties of

legality had already made their way into East Texas. The

Mexican leaders knew that they had neither the money nor

manpower to keep the Americans out by force, so they

approached the situation in a different manner. One of the

first acts of the Mexican government was to confirm in 1821

a land grant made to Moses Austin by Antonio María Martínez,

the last Spanish governor of Texas.

Moses Austin was born in October 1761 in Durham,

Connecticut. He spent his adult years in various business

enterprises, never quite gaining the financial success he

wanted. As was common in those days, his successive

ventures took him farther and farther west. In 1797 he

moved to the Spanish territory of Missouri to take up lead

mining. There he took the oath of Spanish citizenship and

raised his family. The sparse population was still mainly

French with only a few Spaniards present. Other Americans

were scarce but increasing. Moses=s son, Stephen F. Austin,

167

born in Virginia in 1793, grew up in this mixture of

nationalities.2

The Spanish crown ceded the Missouri Territory back to

the French in 1800; three years later Napoleon sold it to

the United States as part of the Louisiana Purchase. The

Austins once again lived in American territory. The War of

1812 disrupted the economy of the region, which was

depressed even further by the panic of 1819. Moses Austin

constantly faced financial stresses, though both he and his

son remained highly respected in the community. The

territorial legislature nominated Moses Austin to serve as

their senator in 1812, but President James Madison did not

appoint him. Stephen F. Austin did serve in the territorial

House of Representatives from 1814 to 1820, when Missouri

joined the Union. This experience would give him a solid

background for his later dealings with other governments.3

In December 1820 Moses Austin traveled to San Antonio

de Béxar to see the governor of Texas and discuss the

possibility of setting up a colony in Texas. In a pamphlet

written in 1829, Stephen F. Austin told the story of that

meeting. Governor Antonio Martínez would not even listen to

the senior Austin=s proposal and ordered him out of the

province immediately. Austin was tired from his journey and

in despair, but, while crossing the plaza in front of the

168

Governor=s Palace, he ran into his acquaintance, the Baron

de Bastrop. Bastrop intervened with the governor and

eventually Martínez approved the application and sent it on

to the state capital for final judgment. The Commandant

General of the Eastern Interior Provinces, Joaquín de

Arredondo, approved the petition in January 1821. The fact

that Austin had been a Spanish citizen in Missouri

apparently was the deciding factor.4

Two events occurred later in 1821 that could have

spelled the end of Austin=s dream of colonization: Mexico

won its independence from Spain and Moses Austin died. The

Mexican government was under no obligation to ratify deeds

by the Spanish government and could easily have rejected the

proposal. Had that happened, Stephen F. Austin might have

gone in another direction, living an easier but less

legendary life. However, Austin chose to carry out his

father=s dying wish and bring Anglo-American colonists to

Texas. In August of 1821, Austin traveled to San Antonio to

request formally that he be made heir to his father=s grant.

Governor Martínez approved the transfer and Austin=s plans

for granting lands to the colonists.5

169

Austin acted immediately to influence families to move

to his colony. These lands were situated along the middle

Texas coast, lying inland to the road from San Antonio to

Natchitoches, an area now occupied by twenty-three counties.

The first families had already arrived when Austin learned

via Martínez that his grant had not yet been approved by the

Map 6. Stephen F. Austin’s map of Texas

Commandant General in Monterrey, who demanded that Austin

not begin colonization until the provincial government had

170

examined and approved the plans. Austin would have to

travel to Mexico City immediately to preserve the colony.6

The details of Austin=s journey and his travails with

the various Mexican governmental entities are not pertinent

to this work. It is necessary only to know that he

eventually succeeded in getting approval for his colony.

Austin=s absence and especially the lack of land laws for

the colony caused uncertainty and disturbances there. One

of his first actions on his return, in January 1824, was to

issue ΑInstructions and Regulations for the Alcaldes,≅ to

quiet the turmoil that had arisen among the colonists during

his stay in Mexico City. This included both a civil and

criminal code, and it was an attempt by Austin to apply

Mexican laws in a form that Anglo colonists would

understand. While in Louisiana, Austin had studied law for

a few months and used his knowledge to write the laws for

his colony. He apparently reproduced from memory all the

forms used in his regulations.7

The first article of Austin=s Civil Regulations

outlined the duties of the alguacil, or sheriff. The

alguacil had to give bond that he would perform his duties

faithfully, including handing over any money he collected.

The regulation even specified the form that the bond was to

follow. The second article gave the form for registering

171

all official acts of the alcalde. An alcalde is usually

translated as mayor, but this official had much wider powers

than most mayors. He was the chief administrator of the

colony and also acted as district judge. He had to record

all cases, judgments, and appeals and hand these over to his

successor in office. The third article gave the form for

filing complaints before the alcalde. The form itself is

drawn directly from Anglo-American law, specifically

Louisiana law. Mexican law did not mandate the use of such

forms: the alcalde was supposed to decide cases on their

merit, not on whether the paperwork had been done correctly.

This lack of emphasis on forms is a major distinction

between Spanish and English legal systems. Austin probably

included the forms in these regulations for the precise

reason that they were what he and his colonists were

familiar with from the United States. Few if any law books

existed in Texas, so he incorporated the forms in order that

everyone would know what to do.8

Articles four through eight covered a defendant=s

response to summons and what to do if either party failed to

appear for judgment. Article nine reflects the Hispanic

influence. If possible, the alcalde was to try to settle

the suit amicably. In contrast, Anglo law discourages

amicable settlements as they tend to lower legal fees.

172

Hispanic influence is further demonstrated in article ten.

If the case involved an amount over ten dollars, the alcalde

would appoint arbitrators to hear the case. However, no

jury trials existed under Spanish law, a point that Anglo

colonists would find less appealing as time went on.

Articles eleven through fourteen dealt with qualifications

to be an arbitrator, his bonds, and his duties. Articles

fifteen through seventeen covered jurisdiction; eighteen and

nineteen dealt with judgments; twenty, the right to appeal

and the form to be followed. Articles twenty-one through

twenty-eight described the methods of executing judgments,

seizing property, and guarding property against its being

removed before judgment could be executed.9

In light of the concern of the colonists over their

debts incurred in the United States, article twenty-seven is

most revealing. It stated that no cause of action accruing

outside of Mexico could be pursued in Austin=s colony

without permission of the judge of the colony. Considering

that Stephen F. Austin was the judge of the colony and he

had outstanding debts in the United States that he was

struggling to repay, the likelihood of such permission being

granted was slim. This lingering concern over debts

outstanding in the United States remained a concern with the

inhabitants of the Republic of Texas, as revealed in the

173

debates over how and whether to enter the Union. The

Regulations ended with a list of alcalde, alguacil, and

constable fees. A final article, added a few months later,

detailed how colonists should deal with stray animals.10

Austin also wrote criminal codes for the colony.

Although this paper does not deal directly with criminal

law, it is interesting to see how Austin blended Anglo and

Hispanic ideals in his criminal codes. The purpose of Anglo

criminal laws was to protect property rights, and

punishments were intended to deter people from breaking the

law. Colonists were accustomed to severe punishments for

slight infractions, especially where property was concerned.

On the other hand, Hispanic criminal punishments were

intended to repair the damage done to the community by the

malefactor. Public apologies, fines paid to build churches

and municipal buildings, and reparations all served to

punish the criminal offender while validating the mores of

the community. The criminal regulations, however, rarely

needed enforcement. Austin=s colony was noticeably law-

abiding, as he and the other leaders expelled

troublemakers.11

The first five articles of the criminal regulations

dealt with the capture and treatment of hostile Indians.

Article six covered murder, theft, robbery, and all other

174

depredations. It was the duty of all honest citizens to

apprehend an evil-doer and bring the criminal to justice.

Article seven outlawed gambling of any sort except horse

racing, primarily because racing horses improved the breed.

Article eight proclaimed swearing and drunkenness to be

misdemeanors punishable by a fine of up to ten dollars. Men

and women living together without benefit of wedding vows

had sixty days to get married before they violated the

provisions of article nine. Any person, man or woman,

convicted of living in sin could be fined up to five hundred

dollars and sentenced to hard labor on public works.

Articles ten through fourteen dealt with the misdeeds of

slaves and the duty of honest citizens to return runaways to

their owner. Article fifteen covered theft, article sixteen

covered assault, article seventeen dealt with slander, and

article eighteen outlawed counterfeiting. All such crimes

could be punished by fine, redress to the injured party, and

hard labor on public works. Articles nineteen and twenty

told the alcaldes how to handle these cases, and the last

six dealt with execution of fines and punishments. Nowhere

was there mention of capital punishment, and corporal

punishment was limited to slaves, reflecting the Hispanic

tradition. José Antonio Saucedo, political chief of the

department of Texas, approved both sets of regulations in

175

May 1824, making them the official laws of Texas for the

next four years.12

One of Austin=s next official acts was to distribute

the land of his empresario grant to the colonists. Most of

Austin=s original colonists, called the Old Three Hundred,

received their land deeds in the summer of 1824.13 Austin=s

original plan for land distribution included giving each

man, married or single, 640 acres, adding 320 acres for a

wife, 160 for each child, and 80 for each slave. He wanted

to sell town lots only to mechanics, merchants, and other

professions who needed to be in town for their business.

All others would live on their farms. This plan had been

approved by Governor Martínez in 1821, but political events

in Mexico brought some minor changes to the system of land

distribution.

The Sovereign General Congress of the United Mexican

States passed the General Law of Colonization in August of

1824. Article one Αoffers to those foreigners who may be

desirous of settling in [Mexican] territory security for

their persons and property, providing they obey they laws of

the country.≅ Taxes would not be collected from colonists

for four years after they moved to Mexico, according to

article six, and article twelve limited the amount of

176

property for any person to one square league (five thousand

yards) of irrigable land, four square leagues of non-

irrigable land, and six more for pasture. Each state was

directed to write its own, more specific, laws.14

In March 1825 the Congress of the state of Coahuila y

Texas passed its Law for Promoting Colonization. It was

much more detailed than the Mexican national law, being set

forth in forty-eight articles instead of sixteen. The state

law also limited colonization to those who promised to obey

the state and national laws and encouraged settlers to

become Mexican citizens as quickly as possible. Article

three made colonists take an oath to support the Mexican

Constitution and Αto observe the Religion as stipulated by

the former.≅ The amount of land to be given to any colonist

was specified as a lot of land 5,000 yards on each side, or

25,000,000 square yards, which could be subdivided into

squares 1,000 yards on each side. Each empresario received

five lots and five subdivisions of arable land per hundred

families brought in, up to a maximum of eight hundred

families. Each family received one division of arable land.

Cattle raisers could receive an extra 24,000,000 square

yards of land. The state law recognized the value of having

women in frontier areas. Bachelors received only one-fourth

the amount of land that a family received, but if that

177

bachelor married a Mexican woman, he could double his land

holdings.15

Stephen F. Austin followed these regulations when

granting land to his colonists, forcing bachelors to join

together as Αfamilies≅ and subdivide the land granted to

the Αfamily.≅ He also followed the practice of granting

land to the head of the household, whether that person was

male or female. According to the list of The Old Three

Hundred, almost a dozen women received land from Austin in

1824. These women, because they were treated as the heads

of families, must have been widows with minor children.

Some women are specifically identified in the deeds as

widows, as when Elizabeth Kuykendal, viuda (widow), sold

land to Jonathon C. Peyton in 1831. A woman=s marital state

made significant differences in her legal capacity under

Anglo-American law, so it was important to make note of it

in the legal document. Women buying or selling land are

identified as widows, spinsters, or married. Married women

had to have their husbands join the sale to make it legal.

When Louisa Ann Morton, widow, sold land to Henry Austin in

1835, she did so by and with the express consent of her

current husband, Daniel Perry.16

Once the colonists received their land and began to

live on it as Mexican citizens, they soon came into conflict

178

with Mexican laws. These Anglo-American settlers who moved

into Texas in the 1820s and 1830s came from mostly the

southern states in the United States. The intention of these

immigrants was to expand the realm of ΑKing Cotton≅ and

spread the southern way of life. People moving from the

South did not want to be transformed into Mexicans, for they

had little respect for Hispanic culture. In Mexican Texas,

they wanted to set up an extension of what they had known

while living in the United States. Stephen F. Austin spent

much time and energy ensuring that Texans would be allowed

to keep their slaves, even after the Mexican government had

abolished slavery. The Jacksonian era immigrants were

determined to create an Anglo-American Texas in their own

image.17

Wherever people go, the institution of marriage

follows. In Austin=s colony, the need for recognizable

marriages caused consternation among the settlers. The

colonists had grown up with American laws, which derived

from English common law. That legal system allowed what

were, and still are, called common law marriages. The

English legal system placed a high value on the protection

of property rights, and it favored having clear title to

property over other legal niceties. Marriages were easy to

obtain because property ownership could be more easily

179

decided in a marriage than in a nonmarital partnership

arrangement. Marriages were so easy to obtain, in fact,

that many people were legally married without even knowing

it. All the law required to turn a cohabiting partnership

into a marriage was an agreement of both parties to be

married, a representation to others that they were married,

and physical consummation. Once a couple met all three

elements, they were married.

Once married, all the wife=s property belonged to the

husband, so clear title was established. This desire to

stabilize society by affirming title to property was the

purpose of common law marriages in ancient times. A more

recent purpose has been to legitimate offspring of non-

traditional marriages. The purpose most suitable on the

frontier was to allow marriages in the absence of churches

and ministers. American pioneers had long relied on common

law marriages as a way to stabilize society when preachers

could not be found. Common law marriages were just as

binding, just as legal, just as legitimate as any marriage

celebrated in a church under English and American law, but

not under Spanish law.

In 1821 Mexico gained its independence from Spain, but

retained the Spanish laws and legal system. The Mexican

Constitution upheld the Roman Catholic Church as the state

180

religion. The Roman Catholic Church, in the Council of

Trent in 1563, had defined a legitimate marriage as one

performed by a Roman Catholic priest in a Roman Catholic

church in front of witnesses. The Spanish king, Philip II,

issued a proclamation in 1564 that he would implement and

defend the orders of the Council of Trent. Philip ordered

all clergy in the Spanish empire, which included Texas,

though no one but Indians lived there, to publish and obey

the orders of the Council. Mexico, or New Spain, probably

received the word in mid-1565. After that time, the rule of

the Council of Trent was the law governing marriages in

Spanish America.18

In Mexico, which continued the Roman Catholic Church as

the established church even after independence, only

marriages performed by priests in churches were valid.

Unfortunately for the inhabitants of Texas, rarely could

they persuade priests to make the trip from civilized,

comfortable Mexico to savage, hostile, and dangerous Texas.

The lack of priests did not stop people from wanting to get

married, and since Austin had outlawed couples living

together without benefit of marriage vows, something had to

be done. The result was marriage by bond.

Couples who wanted to get married would make out a

bond, just like the bonds that guaranteed debts and good

181

behavior, that guaranteed they would get married by the

first priest who came to the area. One hundred marriage

bonds were executed in Austin=s Colony between 1824 and

1835. The wording of all bonds is almost identical. John

Crownover and Nancy Castleman executed the first bond, as

follows:

Be it known by these presents that we John

Crownover and Nancy Castleman of lawful age

inhabitants of Austin=s Colony in the province of

Texas wishing to unite ourselves in the bonds of

matrimony each of our parents having given their

consent to our union and there being no Catholic

priest in the Colony to perform the ceremony Χ

Therefore I the said John Crownover do agree to

take the said Nancy Castleman for my legal and

lawful wife and as such to cherish support and

protect her forsaking all others and keeping

myself true and faithful to her alone. And I the

said Nancy Castleman do agree to take the said

John Crownover as my legal and lawful husband and

as such to love honor and obey him forsaking all

others and keeping myself true and faithful to him

alone. And we do each of us bind and obligate

ourselves to the other under the penalty of twenty

182

thousand dollars to have our marriage solemnized

by a priest of this Colony or some other priest

authorized to do so as soon as opportunity offers.

All of which we promise in the name of God and in

the presence of Stephen F. Austin Judge and

Political Chief of this Colony and the other

witnesses hereto signed. Witness our hand the

29th of April 1824.19

The marriage bonds executed in Austin=s Colony indicate

that early settlers tried to comply with Mexican laws.

Later colonists also showed that they wanted valid marriages

and legitimate children. In the Austin Papers, housed at

the Center for American History at the University of Texas,

is a letter from Thomas Barnett to Stephen F. Austin.

Writing in 1831, Barnett had heard that a priest was soon to

visit the colony. He himself was too ill to travel to San

Felipe, the seat of government for the colony, and he did

not want to leave his family alone for any length of time,

because of Indian depredations in the area. So he wrote,

ΑI have therefore to request you and through you the

Rev[erend] Father Muldoon to call at my house on the way

down to the end that the marriage contract betwixt myself

183

and my wife may be consummated and my children

christened.≅20

The marriage bond between Thomas Barnett and Nancy

Spencer was dated April 20, 1825, so the couple had been

living together as man and wife for six years. Their bond,

like all others, promised to have their marriage formalized

when the next priest came to the area. Father Michael

Muldoon was born in Ireland but educated in Spain because

British laws forbade teaching the Cahtolic faith. He was

the only priest appointed to serve the Texas area, and then

only from 1831 to 1832. Father Muldoon was known for his

leniency toward Texas Protestants, so much so that people

whose conversion to Roman Catholicism was nominal were known

as ΑMuldoon Cahtolics.≅ The Barnetts, like most couples

who married by bond, wanted to make good on their word and

have the priest validate their marriage. No record exists

on any couples who, instead of validating their marriages by

bond, chose to forfeit them. At least one historian has

implied that if both parties reconsidered after filing the

bond, all they had to do was get the piece of paper and burn

it to be Αyoung as ever and free as the air.≅21

The practice of marriage by bond was so commonplace in

Anglo Texas that the Republic of Texas acted quickly to

legitimate both marriages and children born to those

184

marriages whose only other validity lay in their bonds.

Beginning in 1835, the Consultation acted to legitimate

individuals and validate marriages, granting all ministers,

judges, and alcaldes the right to administer marriages, and

declaring legal Αall marriages heretofore celebrated by

bond or otherwise.≅ In 1837 the legislature of the Republic

passed the Marriage Act, saying that the lack of priests had

caused Αmany persons [to] have resorted to the practice of

marrying by bond,≅ and allowed those persons to go before

any magistrate to regularize their marriages. Those

marriages became legally binding from the beginning, i.e.,

from the posting of the bond, and all children of those

marriages were legitimate. Where one spouse had died, the

survivor could validate the marriage automatically.22

Marriage by bond, then, was a practice that lasted just

over a decade, but it explains much about the attitudes of

the settlers. Anglo settlers were used to the concept of

common law marriages, but their desire to obey Mexican law

would not let them simply declare themselves married. They

had to do something that showed an adherence to the Roman

Catholic definition of marriage and that something turned

out to be a bond. Bonds were an English invention that

guaranteed the good behavior of officials on the threat of

their forfeiting the bond money. Bonds also had to be

185

guaranteed by upstanding men in the community who would pay

the bond if the official left town suddenly. Bonds, then,

can be seen as a public display of confidence in a person=s

behavior.

In a way, then, it makes ultimate sense for marriages

to be guaranteed by bond. The whole community suffered when

couples could not marry. Men, especially, were thought to

be much more civilized once they were married. Both the

Recopilación and the immigration laws gave preference to

married men. It is somewhat ironic, though, that marriage,

the most personal of institutions, would be guaranteed by

the forfeiture of a bond, one of the most public of

institutions. That the Texas settlers employed this

innovation, and that they adhered to it, shows that they did

intend to conform to Mexican law, as long as it was

reasonable to do so. When the laws became unreasonable in

the minds of the settlers, they rebelled and formed their

own republic. Marriage by bond showed an outward

acquiescence to Mexican law, while reserving the right for

the settlers to make their own accommodations on their own

terms.

Similarly, case law in the Nacogdoches Archives shows

how Anglo-American immigrants coped with Mexican laws in

Texas. These archives contain a mixture of English and

186

Spanish language documents from the town of Nacogdoches

under Spanish and Mexican rule. The leaders of Austin=s

Colony all endeavored to learn to read and write Spanish,

with varying degrees of success, but many of the colonists

did not make such an effort. They still, however, promised

to abide by Mexican laws, as witnessed by this letter.

ΑDec 9th 1829 To the Constitutional Alcalde of the District

of Nacogdoches: Sir I received your Communication this

morning But as it is in Spanish I do not understand it But

as Soon as I can have it translated it Shall be attended to

[signed] Yours respectfully, Benjamin Lindsy.≅ Another bi-

lingual example of Mexican justice concerned a recent widow.

On July 31, 1824, Julianna Quirk wrote, in English, to Juan

Seguín, who was then Political Chief of the District of

Nacogdoches. She requested that he protect her from her

late husband=s creditors. Her husband had died suddenly and

the creditors all wanted to be paid immediately. She had no

money at that time but did have a mill and promised to pay

off the creditors when the debt came due. Juan Seguín

issued an order, in Spanish, for her creditors to stop

harassing her.

In the name of the Supreme Executive and in the

name of the Mexican Nation, let it be known to any

person having any debt against the property of the

187

late William Kirk: Julianna Nores remains

obligated to recognize the debts owed by the late

Kirk, without any reduction, and will pay them all

when they are due. Costs to the said late Kirk.

My hand August 8, 1824, Juan Seguín.23

Also in 1824, one lawsuit in Nacogdoches followed the

Spanish format, with witnesses giving testimony before the

alcalde, who rendered judgment. A woman, Caty Hogan, was

one of the witnesses, and was treated the same as were the

male witnesses, again following the Spanish custom. Later

lawsuits, though, became more Anglicized. These cases were

more likely to follow Anglo patterns than Spanish patterns,

especially where the parties to the suit were from the

United States. By early 1826, some trials went through the

English procedures of grand jury, with lawyers on both

sides, and a jury trial, neither of which would be used in

Spanish law. Related documents use the terms of venire and

true bill, which are English common law forms. The listing

of cases and outcomes for alcalde=s court, entitled March

term of 1826, gives the names of men who served as jurors,

though the documentation is still in Spanish.24

In September 1826 Nacogdoches resident Robert Collier

died. His wife Harriet was named administratrix, as would

be normal procedure under either Spanish or English law.

188

Her first act as administratrix was to produce an inventory

of the estate, which she filed on September 20. She listed

all of their possessions, with a few exceptions, as

belonging to him, as they would have done under English

common law. These included:

House, offices, and negro cabins, 146 acres in

cotton, a gin, house, and press; another 60 acres

fenced; another plot of 8 acres with unfinished

cabin; four Negroes: Matthew, a field hand, 38,

Mary, a field hand, 21, William and Daniel both 2,

claimed by Mrs. Collier as her own, as gift from

her father; Caesar, field hand, 40, Judy his wife,

field hand, 38, Caroline, 10, Gill, 8, Rilla, 5,

Patsy 3, Gabriel 5 months all children of Judy and

Caesar; Dory, field hand, 21, property of

Nathaniel Collier [son]; Judy, 21, field hand;

Crayton, field hand, 50, his wife Jenny, 60;

Joanna, house servant, 14, Sarah, house servant,

25 with her children Eliza, 8, Teno, 5, and

Louisa, 1; farming utensils and blacksmith tools;

50-60 head of cattle, 20 head of hogs, 5 mules, 2

jennies, 2 jacks, and a colt, 5 horses and mares

and 2 colts; household furniture; mares, jacks,

189

and jennies in possession of Capt. Grosvenor;

George, a field hand, 14.

As in the previous case, the husband=s creditors wanted to

be paid off immediately. Collier petitioned the alcalde for

relief from the creditors until she could gather the cotton

crop, for then she would be able to pay them.25

Apparently Collier was not able to pay off all the

debts, because in April 1827, she was sued, in her capacity

as administratrix, by James Tate. She was joined in this

suit by her new husband, John Roberts. No outcome of this

suit remains in the archives, but creditors Harrison and

Hopkins won a judgment against John Roberts and wife as

curators of the estate of Robert Collier. Here the suit was

against the new husband, though the wife/administratrix was

named. As under English law, it was the husband, not the

wife who was the administratrix, who had to provide bond as

defendant. In January of 1828, the same John Roberts and

wife filed a plea for justice in the estate of Robert

Collier, in response to a suit by yet another creditor,

named Bean, who wanted to attach some of the Roberts=s slave

in lieu of payment. Harriet testified that the slaves Bean

wanted were given to her as a wedding present by her new

husband, and so were not part of the Collier estate. Here,

again, the suit is actually against the wife in her capacity

190

of administratrix; the husband is named as the main party.

All the people in these suits follow English law by naming

the new husband as the main party, when the widow/wife was

the admistratrix of the estate.26

The administration of the estate of Micajah Munson

shows how the American colonists still wanted to follow

American laws. Munson died intestate in Nacogdoches in

September 1826, leaving a widow, Elizabeth, and two young

children. The alcalde named the widow administrator. Women

in Mexican Texas did not stay single long: in June 1827

Elizabeth married Samuel Whitney. Whitney now claimed the

entire estate as his by virtue of the marriage and proceeded

to dispose of it as he pleased. The deceased=s brother,

Henry, filed suit in September 1828 to stop the wastage of

his brother=s property. Henry Munson claimed that since the

widow had remarried, she should no longer be either

administratrix of the estate or guardian of the minor

children, as her interests would now be with her new

husband. The alcalde agreed and appointed Munson

administrator and guardian of the children in September

1828. He filed an inventory a week later that proved to the

court that there had indeed been wastage of the estate.

Horses had disappeared, cattle had been sold below cost, and

the Negroes used without compensation to the estate.

191

Elizabeth was found to have been derelict in her duties as

administratrix and ordered to pay $572.35 to the estate.

All of this followed English law; under Spanish law half of

the estate would have belonged to the widow outright as her

half of the community property, and half of the remainder

would have been hers by intestate succession. The remaining

quarter was all that would have gone to the children, and

she did not waste their quarter. Under Spanish law, as it

should have been applied in Mexican Texas, Elizabeth Munson

Whitney would not have been liable.27

American women, used to the English legal system,

sometimes found it useful to appropriate what little

protection it offered them. In legal matters, it was

usually easier for a man to go through the court system and

get justice, so women appealed to their male protectors. In

September 1835, Daniel Wilbourne applied for guardianship of

his daughter Milly Berry, widow of John Berry, and her son.

Honorabel Juge Lues Roguag -- Daniel Wilbourne

Setler in this Jurisdiction makes it nown to your

honour that it is the wish of his Daughter Milley

Berry the widow of John Berry Diseast that I

should be a Joint guarden for hir and hir son John

Berry the son of John Berry Deseast with Antonio

Manchak to atend to giting the Property that was

192

left by John Berry Deseast for the Banifit of the

air of said Berry and his widow and fulfilling

such Deutys as may be to the Benifit of the same

Declaring this to be Done in good faith areeable

to the wish of Milley Berry widow of John Berry

Deseast -- Nacogdoches September the 24th--1835

The alcalde granted the request on October 3, 1835. The

reason for the petition was that it would be much easier for

the widow=s father to file all the legal papers and deal

firsthand with creditors than it would be for the widow

herself. Under Mexican law, she had complete legal

capacity, but under American custom, she would have found it

difficult to receive justice.28

The ayuntamiento of San Felipe De Austin sometimes

followed Anglo law and sometimes used Mexican law when

deciding suits and petitions of colonists. It cannot be

determined why the ayuntamiento chose the laws it did,

unless they were driven by a sense of justice and used

whichever law system brought them closest to equity. On

December 6, 1830, the ayuntamiento heard a petition from

Eliza Grazley for title to certain lots to be granted to her

husband, T. J. Grazley. No reason for her husband=s

nonappearance was given, nor was she expressly mentioned as

his agent. The ayuntamiento granted the petition and gave

193

title to the husband alone, if he could make improvements on

the lots. This followed Anglo law, for under Spanish law

the title would be vested equally between husband and

wife.29

A few days later, on December 15, 1830, the

ayuntamiento followed Spanish law. Sarah Scily, wife of

Green DeWitt, empresario and founder of DeWitt=s Colony,

petitioned the ayuntamiento of Austin=s Colony for a league

of land. As justification for her petition, she claimed the

need to protect herself and her family from her husband=s

debts. The ayuntamiento granted the petition and gave title

to the land to the wife. Under Anglo-American law, this

action would have made the husband legal owner and manager

of the property so it could be seized by a court and sold to

pay his debts. Under Spanish law, it belonged to the wife,

so it could not be taken by her husband=s creditors. Here,

the ayuntamiento used Spanish law to protect the wife and

family from the husband=s debts, a pattern that would be

followed many times in later Texas legislation.30

The administration of politics was also an amalgamation

of Spanish and English systems. On July 7, 1832, the

ayuntamiento of San Felipe de Austin met in extraordinary

session to discuss the restoration of peace at Anahuac. The

194

members present were: ΑHoratio Chriesman, 1st Alcalde P D

McNeil 1st Regidor Wm Robinson 2d Regidor T H Bell 3d

Regidor Jesse Grimes 4th Regidor Martin Allen 5th Regidor

Henry Cheeves Sindico Procurado.≅ These men were all former

Americans using Mexican titles. They all swore ΑAllegiance

to the Federal Constitution of the US of Mexico, the

Constitution of Coahuila and Texas, and general Laws of the

Nation and State of their adoption,≅ showing their loyalty

to Mexico and their desire to abide by the legal system of

Mexico.31

From 1821 to 1836, people living in Mexican Texas

combined various parts of the legal systems that had

originated in England and Spain centuries earlier. Though

in the early years of colonization Austin=s settlers tried

to follow the Mexican system, this situation did not last

long. In later years new colonists wanted to use the

Mexican judicial system as if were just like the one they

had known in the United States, adding only those provisions

of Spanish law that would help their cases. Both men and

women living in the Anglo colonies presumed that women=s

rights were the same in Texas as they had been in the United

States. Wills, deeds, and court cases all show a

continuation of the English common law, with married women

195

having no legal identity and with widows not receiving a

community property settlement of intestate estates. Most of

the colonists, while promising to follow Mexican laws,

actually did little to find out what those laws were. As

the years passed and more people migrated from the United

States, the Mexican laws held less sway over the colonists.

Increasingly, they conformed to the legal system they had

known in America, with a few modifications to make it seem

as though they were, in fact, following Mexico=s laws.

Their desire for American-style justice would be a major

cause of their movement for independence from Mexico.

196

ENDNOTES FOR CHAPTER 8

1. Archivo General de la Nación (Mexico), Center for

American History, University of Texas at Austin; The Laws of

Texas 1822-1897 compiled and arranged by H. P. N. Gammel,

with an introduction by C. W. Raines (10 vols.; Austin:

Gammel Book Company, 1898). Vol. 1 includes among other

legal enactments the Colonization Law of 1823 and the

Constitution of 1824, and all laws passed by the state

legislature of Coahuila and Texas. None of the laws

included in Gammel's work that were enacted before 1835

change the legal status of women.

2. Eugene C. Barker, Life of Stephen F. Austin, Founder of

Texas: A Chapter in the Westward Movement of the Anglo-

American People (Austin: University of Texas Press, 1969),

17-19; David B. Gracy, II. Moses Austin: His Life (San

Antonio: Trinity University Press, 1987), 53-94; Gregg

Cantrell, Stephen F. Austin: Empresario of Texas (New Haven:

Yale University Press, 1999), 15-42.

3. Barker, Stephen F. Austin, 3-13; Gracy, Moses Austin,

166, 170-71, 197; Cantrell, Stephen F. Austin, 57-60, 71-72.

197

4. Gracy, Moses Austin, 200-203; Barker Stephen F. Austin,

24-25. Barker entertains the possibility, which never occurs

to Gracy, that Stephen might have gotten the information

from Bastrop. Gracy wondered how Stephen could have learned

the story, as he never saw his father alive after the

meting, nor were any letters extant. Barker includes the

possibility of Bastrop telling the younger Austin about the

elder, but does not stress the point. Cantrell points out

that Stephen F. Austin and the Baron de Bastrop had many

amicable dealing with each other. Bastrop could have

fabricated the story entirely, embellished what actually

happened to make himself look like the hero, or could have

told the exact truth. No evidence proves or disproves any

aspect of the story. Cantrell, Stephen F. Austin. 84-86.

5. Barker, Stephen F. Austin, 29-32; Cantrell, Stephen F.

Austin 80-103.

6. Barker, Stephen F. Austin, 29-42; Cantrell, Stephen F.

Austin, 98-100.

7. Barker, Stephen F. Austin, 80-118. Cantrell has a good

account of Austin=s stay in Mexico and his imprisonment

there on pages 104-131. Joseph W. McKnight, ΑStephen F.

198

Austin=s Legalistic Concerns,≅ Southwestern Historical

Quarterly 89 (January 1986): 244.

8. Stephen F. Austin, ed., Translation of the Laws, Orders,

and Contract of Colonization from January 1821, up to this

Time . . . (San Felipe de Austin, 1829), 59-65; Joseph W.

McKnight, ΑLawbooks on the Hispanic Frontier,≅ Journal of

the West 27 (1988): 74-84; Joseph W. McKnight, ΑLaw Without

Lawyers on the Hispano-Mexican Frontier,≅ The West Texas

Historical Association Yearbook 66 (1990): 51-65; McKnight,

ΑStephen F. Austin,≅ 244, 247-57.

9. Austin, Translation of the Laws, 60-65.

10. Ibid., 59-65; McKnight, ΑStephen F. Austin,≅ 247-57.

McKnight suggests that Austin=s urban upbringing was the

cause for his not including the clause on stray animals in

the original regulations.

11. See Charles R. Cutter, The Legal Culture of Northern New

Spain, 1700-1810 (Albuquerque: University of New Mexico

Press, 1995) on the legal system=s purpose of protecting and

enhancing the community. Austin, Translation of the Laws,

59-65; Cantrell, Stephen F. Austin, 142-46, 176-77, 213-14.

199

12. Austin, Translation of the Laws, 59-65.

13. See the appendix for a listing of Austin=s first

colonists.

14. Gammel, Laws of Texas, 1: 97-98.

15. Ibid., 1: 99-106.

16. See list of colonists in appendix. Deed from Kuykendal

to Peyton is in the Austin County Clerk=s Office Colonial

Archives, Spanish Deeds, vol. 1, 1825-1835; deed from Morton

to Austin in Austin County Clerk=s Office, Index to Deeds,

Book A.

17. See Randolph B. Campbell, An Empire for Slavery: The

Peculiar Institution in Texas, 1821-1865 (Baton Rouge:

Louisiana State University Press, 1989). Chapter One

explains the motives and numbers of Americans moving to

Texas; Barker, Stephen F. Austin, 201-225; Cantrell, Stephen

F. Austin, 160, 189-92, 203-04.

18. Hans W. Baade, Α>Marriage by Bond= in Colonial Texas≅

Cornell Law Review 61 (November 1975): 1-83.

19. Marriage Bonds Austin County 1824-1835, microfilm.

200

20. Austin Papers, Thomas Barnett to Stephen Austin, June

15, 1831.

21. Marriage Bonds, Austin County; New Handbook of Texas,

Ron Tyler, et al., eds. (6 vols.; Austin, The Texas State

Historical Association, 1996), 4: 880; Henry Smith,

ΑReminiscences of Henry Smith≅ Texas Historical Association

Quarterly 14 (1910): 31.

22. Gammel 1: 1041; Gammel 1:1293-94; Gammel 2: 640.

23. Nacogdoches Archives (NA), Center for American History,

University of Texas at Austin, December 9, 1829; NA July 31,

1824; Seguín=s response, August 8, 1824.

24. Ibid., September 7, 1829; Report of March term 1826.

25. Ibid., September 20, 1826; September 23, 1826.

26. Ibid., April 17, 1827; January 20, 1828; February 16,

1828.

27. Ibid., September 1, 1826; September 24, 1828; October 2,

1828.

28. Ibid., September 24, 1835; October 3, 1835.

201

29. Eugene C. Barker, ed., ΑMinutes of the Ayuntamiento of

San Felipe de Austin, 1828-1832,≅ in Southwestern Historical

Quarterly 23 (April 1920): 75.

30. Eugene C. Barker, ed., ΑMinutes of the Ayuntamiento of

San Felipe de Austin, 1828-1832,≅ in Southwestern Historical

Quarterly 23 (October 1920): 149.

31. NA, July 7, 1832.

202

CHAPTER 9

THE CREATION OF THE REPUBLIC OF TEXAS

AND ITS LEGAL SYSTEM

The people and events of the Texas Revolution have long

since been adopted into American mythology. Reality, of

course, is much more complex than the image. As more

Americans migrated into Texas, the community of Texians

became more Anglicized, less willing to obey the laws and

customs of a people they deemed inferior. The clashes

between the cultures began early in the settlement process

and grew steadily worse as the differences in the two legal

systemsΧthe one the settlers promised to obey and the one

they knewΧbecame more apparent. Anglo settlers began to

demand their Αnatural rights,≅ those rights such as jury

trial and representative government that had developed in

English common law. Mexican law had no such rights, and the

Mexican government viewed such demands as senseless, even

treasonous.

Spanish and Mexican officials had long feared that

United States citizens would take parts of northern Mexico

203

by force. The activities of early intruders, like Philip

Nolan in the 1790s and Zebulon Pike in 1807, caused great

consternation to Spanish officials. Later filibusters such

as the team of Bernardo Gutiérrez de Lara and Augustus W.

Magee in 1812-13, and Dr. James Long, with his expeditions

in 1819 and 1821, who tried various means to connect Texas

to the United States, caused even greater concern. None of

the Americans was successful in gaining Texas land for the

United States, but these attempts were a major factor in

Mexico=s decision to allow controlled immigration from the

United States in the 1820s. Once Anglo-Americans began to

settle Texas, though, some immigrants spurned Mexican laws

and tried to reshape Texas in the American mold.1

The Mexican government decided that its policy of

allowing immigration from the United States was too

dangerous, and passed a law on April 6, 1830, halting all

further immigration from that country. The law also ordered

the collection of customs duties in Texas and provided for

the garrisoning of troops in the area. Since colonists had

been exempt from most taxes and duties before 1830, their

imposition coming at the same time as the outlawing of

further immigration alarmed them greatly. They did not

understand that the use of the military to collect taxes and

tariffs was common in Mexico. The United States had no such

204

tradition, and the colonists feared the loss of their

Αnatural≅ rights and liberty as defined by the U.S.

experience.2

Juan Davis Bradburn was the military commander at

Anahuac, where the customs duties for East Texas would be

collected. Bradburn was a native of Virginia, but he had

fought for Mexico in the war for Mexican Independence and

was a colonel in the Mexican army. He was also a

centralist, in favor of a strong central government, as

opposed to the federalists who wanted more power in the

hands of the states. Most Texans naturally favored the

federalist position, so a contest between centralists and

federalists began in earnest.3

Slavery was another issue that persuaded some colonists

to consider armed resistance. Mexico had abolished slavery

in 1829, though Austin had gained an exemption from this law

for Texas. In 1831 Bradburn sheltered some runaway slaves.

Their owner hired attorney William Barret Travis to demand

the return of the slaves. After legal harassment on both

sides, Bradburn used the military to arrest Travis and his

co-counsel, Patrick Jack, on grounds of sedition. This

action was entirely legal under Mexican law, but Anglo-

Americans saw the use of the military in what was to them a

civil matter as a sign of tyranny. Soon Bradburn, as the

205

representative of the Mexican institutions, was under siege

by one hundred and sixty angry Anglo-American immigrants.

When the Texans heard that Antonio López de Santa Anna was

leading a federalist rebellion against centralist President

Anastacio Bustmante, they wanted to gain his support.4

The colonists=s loyalty, however, was not to Santa

Anna, but to their own perceived interests. Accordingly,

when they began to think that their rights would not be

protected by Santa Anna=s government, the ayuntamiento of

San Felipe de Austin called for a convention to decide how

to protect themselves. Austin, who had opposed the

convention in the first place, served as its president and

helped set the tone of the convention as mild and lawful.

The delegates, who came from all American-settled parts of

Texas, prepared a petition asking for the repeal of the Law

of April 6, 1830, and for the admission of Texas as a

separate state in the Mexican nation.5

The chain of events over the next six years, which led

to the establishment of the Republic, are too familiar to

recount.6 Of paramount importance was Santa Anna=s move from

federalist to centralist. In 1836 the Mexican leader

announced his Siete Leyes, which abrogated the federalist

constitution of 1824 and replaced with a central government

under his authoritarian control. Henceforth, state governors

206

would be appointed in Mexico City; the presidential term

would be extended from four to eight years; and property

qualifications for voting would be greatly increased.

Mexico=s second constitution, the Siete Leyes, prompted

revolts in approximately twelve statesΧone of which was

Texas.7

Ultimately, the birth of the Republic was assured by

the historic battle of San Jacinto on April 21, 1836. Santa

Anna, himself, was a captive of the victorious Texans, who

forced him to sign a treaty granting Texas the independence

that their government had proclaimed on March 2.8

The Texas government, however, had not waited for Santa

Anna=s capitulation, or even its own Declaration of

Independence, to change its legal system. On November 13,

1835, the ΑPlan and Powers of the Provisional Government of

Texas≅ announced in its article six that the judges of Texas

should decide all cases by laws based on the common law of

England with such modifications as circumstances required.

The common law was to be the rule of decision in all

criminal cases, and article seven guaranteed trial by jury.9

Moreover, on January 16, 1836, the Provisional Texas

Congress voted that all crimes and misdemeanors should be

regulated by the common law of England and that all civil

207

matters, specifically probate and succession, would be

governed by the Civil Code of Louisiana. The Civil Code

derived from the Spanish laws, like Las Siete Partidas, but

had been simplified in that it incorporated the language of

the Napoleonic Code. The Code did not affect Texans much,

as lawmakers paid little attention to it, and this

pronouncement was soon superseded by legislative action.

The bill also declared all marriages, of whatever form,

valid. James W. Robinson, as Acting Governor, approved the

bill on January 22, 1836. Legislators took this action not

because they did not like Mexican law, but because they had

a much greater familiarity with Anglo-American law.10

On March 2, 1836, just after passing the resolution to

declare independence, the Convention appointed a committee

to write a Constitution for the Republic of Texas. This

constitution, as adopted on March 17, closely followed the

constitution of the United States, with a few changes. The

first president would serve for two years, all remaining

presidents would serve for three years, and no president

could succeed himself. Ministers of all religions were

forbidden to take office in the republic; slavery was

legalized and free persons of African descent were denied

the right to reside in Texas. A court system modeled on

that of the United States was described in article four,

208

with section 13 declaring, ΑThe Congress shall, as early as

practicable, introduce, by statue, the common law of

England, with such modifications as our circumstances, in

their judgment, may require; and in all criminal cases, the

common law shall be the rule of decision.≅11

Most Texans expected that the Republic would, in fact,

be short-lived because it would be annexed quickly by the

United States. The first election for president of the

Republic went to Sam Houston, partly because of his status

as military hero, but also because Houston was a close

friend of Andrew Jackson. Texans expected this connection

to aid in immediate action, but political considerations

kept Jackson from pushing for Texas annexation. The issue

of the expansion of slavery, if debated in the election of

1836, might have kept Van Buren from being elected, so

Jackson did not even recognize the independence of Texas

until the last days of his administration. Texas remained a

republic from 1836 until 1845.12

Politics in the Republic were complicated, based more

on personalities than parties. Sam Houston as first

president and Mirabeau B. Lamar as his successor were

irreconcilable on many matters. The floundering economy,

troubling Indian relations, and achieving diplomatic

recognition were far more pressing issues to most Texans

209

than was establishing a precise legal system. Not until

January 1840 did Congress formally enact that the common law

of England, where consistent with the Constitution or laws

of Texas, be the rule of decision in civil matters. This

law also repealed all laws passed prior to 1836, except

those regarding land grants.13

The Act of January 20, 1840, also defined marital

property. A wife kept as her separate property all land and

slaves owned at the time of her marriage, and all her

personal property owned at the time of her marriage or

received as a gift or inheritance during the marriage. The

increase of separate property slaves would remain separate

property. The husband had the power to manage all of the

wife's property during the marriage but could not sell it

without her consent. The husband also needed to obtain the

wife's father's consent before the husband could sell land

or slaves belonging to the wife. If the father was dead,

the husband had to get court approval. Community property

included all property acquired during the marriage, and all

property brought into the marriage except the land and

slaves, as well as the wife's personal effects. The

community property would be liable for all debts of the

husband, however, in the case of debts of the wife, it would

be liable only for necessities. Intestate succession

210

followed Spanish law: the surviving spouse received half of

the deceased's half of the community and the children split

the other half equally. The survivor kept the half of the

community property that belonged to him or her. If no

children existed, all the community property went to the

surviving spouse.14

The law of January 28, 1840, also authorized married

women to make wills without the consent of their husbands.

Under English common law, all the property in the name of

the wife belonged to the husband, so she had no right to

dispose of it after her death. Under Spanish law a married

woman could dispose of her separate property and her half of

the community property by her will. The Texas legislature,

by enacting a law to this effect in 1840, recognized the

inherent inequity in the English common law and gave women

back some of the rights they had during Spanish rule. As

under Spanish tradition, the husband had the right to manage

his wife's property, but his powers could be limited by a

court. If the husband abandoned his wife, or if he wasted

the wife's property, the wife could petition the court and

the judge could grant the wife the right to manage her own

property. As in the Spanish and Mexican systems, when a

husband sold community real property, the wife had to be

questioned separately to determine that it was truly her

211

wish to sell the land. For over a century, all deeds

recording sales of community property land included a

separate averment by the wife, made to a notary public out

of the presence of her husband, that she agreed to the sale.

The need for the wife's consent came directly from Spanish

law.15

Other laws changed specific parts of common law to

match the expectations of Texans. English law had no

provision for adoption or legitimation for natural children;

Spanish law favored both. The Texas legislature formally

granted adoptions and subsequent name changes to three

people and officially declared eight others to be the

legitimate offspring of their parents. These actions

followed Spanish tradition exactly, with the only exception

being that it was not the king but the legislature who

authorized the changes in status.

Because English law had no form for adoption, the Texas

legislators created their own process. This two-part act of

law included a name change for the adoptee, and the

declaration that the adoptee was the legal heir of the

adopter. John Finley Collier, son of Harriet Collier who is

mentioned in chapter eight, changed his name to John Finley

Roberts when Harriet married John S. Roberts. John Roberts

adopted Harriet=s son as his legal heir. John and Mary

212

Gillespie adopted Mary Nettle, who changed her name to

Gillespie and was then their legal heir. George and Mary

West adopted Henry Smith as their legal heir, and he adopted

their name. The legislature declared the two sons of

Stanley C. Robertson by two different women to be his

legitimate heirs. Likewise, they declared the son of Allen

Vince and Matilda Wellborn to be his legitimate heir. The

legislature did not need to declare the child the heir of

his mother, because under Spanish law all children,

regardless of their legitimacy, inherited from their

mothers. Several times the Republic of Texas Congress

enacted laws declaring children of a particular marriage to

be legitimate. These marriages were probably marriages by

bond, as temporary cohabitation did not merit legitimation

of resulting children. In 1841 Congress passed legislation

legitimating all children whose parents subsequently

married, but fathers could still adopt and legitimate

natural children without marrying the mother.16

Proof that women actually exercised their legal rights

can be found in diaries from the Republic of Texas period.

Pioneer women did not have time to worry over fine points of

law, but when their rights came under question, they did not

hesitate to defend them. Adolphus Sterne was a German

immigrant lawyer living in Texas during the 1830s-1840s.

213

His diary is full of dealings with women. He acted as one

female client's advisor when she was executrix of her

husband's estate. In another case, he needed to get a

wife's signature on a deed so it would be valid. He saw to

the distribution of an estate equally between sons and

daughters. Wives gave him power of attorney to take care of

their separate property. All of these actions would have

been impossible or illegal under English law, but the laws

of the Republic allowed him to follow the Spanish

tradition.17

The Nacogdoches Archives contain examples of how women

used their Spanish-legacy rights to sue and be sued during

the Republic era. One enigmatic entry is a revocation of a

power of attorney executed by Nancy Walker. She had given

her power of attorney to E. O. Lagrand to sue Hiram Walker

Αfor damages in marriage contract.≅ Apparently Lagrand did

not work to Nancy=s satisfaction because she revoked the

power of attorney so she could sue Hiram in her own behalf.

Under English law, she could not have done any of these

legal actions. A married woman could not grant a power of

attorney to sue her husband because she did not have the

right herself to sue him. She could not bring any legal

action because she did not exist as a legal entity. She

especially could not sue her husband, because everything she

214

was or owned belonged to him. Under Spanish law, and

obviously under Republic of Texas law, this was not the

case.18

In 1840 Rebecca Finley sued Vincenta Córdoba for

stealing one of her slaves, valued at $1,500. She won the

case and was entitled to damages. Her marital status was

not mentioned because it was immaterial. By the Act of

January 20, 1840, all slaves owned by a wife before her

marriage remained her separate property. Finley therefore

had to bring suit in her own name whether she was married or

not, because the slave in question belonged to her alone.

Under English common law, if she was married, her husband

would have to bring the suit, and if she was widowed, that

would be mentioned in the proceedings to prove she had no

right to sue.19

Women did not always benefit from this expansion of

their legal rights and responsibilities. In November 1840

Sam Houston, the former president of the Republic of Texas,

who knew the laws as well as any person in Texas, sued

Polonia Minles del Padilla. She was the widow and

administratrix of the estate of Juan Antonio Padilla.

Houston claimed that the husband had owed him and that the

estate was liable. He won the case. The widow had no money

to pay the debt, so Houston had the court order that she be

215

evicted from her home. It could then be sold and the

proceeds used to repay him.20

The Nacogdoches Archives also contain several instances

of women buying and selling land. Under English law,

married women could not normally own land, so they could not

buy or sell it. Widows and spinsters could own, buy, and

sell land; their marital status was always mentioned in the

transfer to prove they had legal capacity. Under Spanish

law, women of any marital status could own land, but land

owned by a married woman was usually sold by her husband,

with her separate consent, though she could sell it herself

if her husband was not present. In the early years of the

Republic, land transactions took place with women as buyers

and sellers. Their marital status was not always included,

nor were separate acknowledgments always performed. In

1837, Sophia Towns, identified by her raceΧΑColored≅Χ but

not by her marital status, sold to William Nestles a lot she

had bought in 1831. Juliana Sosa was identified as a widow

when she sold land to Frost Thorne. When Therés Rodríguez

Tobar sold land to Adolphus Sterne, her marital status was

not included, perhaps because the land in question had been

inherited. All inheritances became separate property so it

was hers to dispose of as she wished, even if she was

married. Emilia Sophia Forbes bought land from María Josefa

216

Pares, alias ΑNegrita≅, and her son José Falcones, and the

marital status of neither woman appears on the document.

Forbes also bought land from Adolphus Sterne and again, her

marital status was not mentioned.21

A Supreme Court of the Republic of Texas was authorized

by the Constitution of 1836, but it did not meet until 1840.

James Collinsworth was elected to the first chief justice

position, but he never served. Upon his death in 1838,

President Houston appointed John Birdsall to fill the

vacancy, but he, too, never called the court into session.

The Texas Congress elected Thomas Jefferson Rusk to be chief

justice in January 1838, but he did not call a session until

late spring of 1840. His court heard only a few of the

twenty-two cases filed. Of all the Republic and early

statehood justices, John Hemphill, who served as chief

justice from 1840 to 1842 and from 1846 until 1858, is the

most respected, most famous, and most liberal on his

interpretations of women=s property rights. During the

Republic era, however, only one case came to the court to be

decided on the facts of domestic relations or marital

property law. In Scott v. Maynard, the Supreme Court ruled

in favor of a wife being able to sell community property in

the absence of, or with the consent of, her husband.22

217

As in most times and places, people have more immediate

things to worry about than their property rights. The

political and safety issues of the Republic far outweighed

discussion of esoteric legal principles. In politics,

people aligned themselves with either Sam Houston or

Mirabeau B. Lamar, and one main topic of discussion was

Indian trouble. The other hot topic was whether to allow

banks in the Republic. Most of the people who immigrated to

Texas in the years 1836-1845 could be described as

Jacksonian Democrats. One defining characteristic of

Jacksonians was that they distrusted banks, especially after

the Bank War of 1832. They blamed banks for the Panic of

1837, though historians now know this reasoning was

incorrect. The Texas immigrants carried this distrust of

banks to a higher level. Most of them had left substantial

debt behind them in the United States and were not anxious

for U.S. creditors to be able to collect on them in Texas.

As a result, the question of whether banks should be allowed

to operate in Texas became a heated political issue. This

issue was resolved when the legislature of the Republic

specially forbade the operation of banks in the new

nation.23

The economy of the Republic was always in trouble. The

Lamar administration attempted to stem inflation and provide

218

government funds by printing copious amounts of paper money.

The Αred-backs≅ printed during his term depreciated almost

immediately to less than ten cents on the dollar. Texans

blamed much of the monetary trouble on banks in the U.S.,

and opposed the creation of these nefarious institutions

within the Republic. Both Lamar and his successor,

President Anson Jones resisted the establishments of private

banks in Texas. An act to suppress private banking became

law in 1844. This hostility toward banks came from the fear

on the part of Texans that banks would seize their hard-won

property for debts both ancient and recent. This fear kept

many Texans, including Lamar, from desiring annexation in

1845.24

During the existence of the Republic of Texas, 1836-

1845, almost every circumstance was in flux. The economy

went from bad to worse, political races were bitterly

fought, diplomatic recognition came slowly, if at all, and

settlers pushed for some sort of peaceful coexistence with

the Native Americans. The legislature tried to deal with

all these problems and more. Texas legislators had little

training for their jobs, so the legal system of the Republic

grew out of existing Spanish and Mexican law, overlaid with

the English common law, and it was further modified by

exigent circumstances. Of all the men in positions of

219

power, the only one who seemed to be concerned about

developing a cohesive legal structure was Chief Justice

Hemphill, and even he did not accomplish much until after

statehood. The problems addressed during this era would

also trouble the state of Texas after it finally achieved

annexation into the United States of America.

220

ENDNOTES FOR CHAPTER 9

1. Rupert N. Richardson, Ernest Wallace, and Adrian

Anderson, Texas: The Lone Star State (5th ed.; Englewood

Cliffs, New Jersey: Prentice Hall, 1988,), 48-58; Archie P.

McDonald, ΑAnglo-American Arrival in Texas,≅ in Ben Procter

and Archie P. McDonald, eds., The Texas Heritage (3rd ed.;

Wheeling, Ill.: Harlan Davidson, 1998), 18-23.

2. Richardson, et al., Texas, 83; Cantrell, Stephen F.

Austin, 221-27.

3. Richardson, et al., Texas, 84; Cantrell, Stephen F.

Austin, 224-25.

4. Richardson, et al., Texas, 84-87; Cantrell, Stephen F.

Austin, 224-260.

5. Richardson, et al., Texas, 87; Cantrell, Stephen F.

Austin, 262; Eugene C. Barker, Life of Stephen F. Austin,

Founder of Texas: A Chapter in the Westward Movement of the

Anglo-American People (Austin: University of Texas Press,

221

1969), 348-59.

6. Richardson, et al., Texas, 84-109. For more complete

treatment of the revolution, see Paul D. Lack, The Texas

Revolutionary Experience: A Political and Social History,

1835-1836 (College Station: Texas A&M University Press,

1992) and Stephen Hardin, Texian Iliad: A Military History

of the Texas Revolution, 1835-1836, illustrated by Gary S.

Zaboly, (Austin: University of Texas Press, 1994).

7. Archie P. McDonald, ΑTexas Independence,≅ in Procter and

McDonald, The Texas Heritage, 30-37; Richardson, et al.,

Texas; Cantrell, Stephen F. Austin, 267-96.

8. Richardson, et al., Texas, 117-19; Archie P. McDonald,

ΑTexas on the Rise,≅ in Texas: A Sesquicentennial

Celebration,Donald W. Whisenhunt, ed. (Austin: Eakin Press,

1984), 80-81; McDonald, ΑTexas Independence,≅ 39; Sam

Houston, ΑHouston=s Official Report,≅ in Documents of Texas

History (Lubbock: Texas Technical College, 1960), 113-115.

9. Documents of Texas History, 91-93.

10. The Laws of Texas 1822-1897 compiled and arranged by H.

P. N. Gammel, with an introduction by C. W. Raines (10

222

vols.; Austin: Gammel Book Company, 1898)1: 1039.

11. Gammel, ed., Laws of Texas, 1:9-26.

12. ΑPresident Houston=s First Inaugural Address,≅ in

Documents of Texas History, 123-24; Richardson et al.,

Texas, 127-28; McDonald, ΑLone Star on the Rise,≅ 85-87;

Stanley Siegel, A Political History of the Texas Republic,

1836-1845 (Austin: University of Texas Press, 1956), 43-55.

13. Gammel, Laws of Texas, 1:1074, 2:177; James D. Lynch,

The Bench and Bar of Texas (St. Louis: Nixon-Jones Printing

Co., 1885), 26-31; Kathleen Elizabeth Lazarou, Concealed

Under Petticoats: Married Women=s Property and the Law of

Texas, 1840-1913 in the series American Legal and

Constitutional History: A Garland Series of Outstanding

Dissertations, eds. Harold Hyman and Stuart Bruchy (New

York: Garland Publishing, Inc., 1989), 52-54.

14. Lazarou, Concealed, 54-55; Gammel, Laws of Texas, 2:177.

15. Lazarou, Concealed, 57-58; Gammel, Laws of Texas, 2:608.

16. Gammel, Laws of Texas 1: 1445, 1515; 2:37, 114, 156,

640, 678, 1056, 1064, 1065, 1110.

223

17. Archie P. McDonald, Hurrah for Texas: The Diary of

Adolphus Sterne, 1838-1851 (Waco: Texian Press, 1969), 11,

29, 40, 44. The diaries of pioneer women do not mention

legal privileges as these women were too busy keeping alive

and raising their families on a hostile frontier to worry

about legal fine points. Even prosperous women such as Jane

Long who owned several town lots, acres of land in the

country, slaves, horses, and a hotel during the Republic

period, did not need to sue anyone to enforce her legal

rights. People seem to have simply followed the Spanish

practices here, because they made more sense. Ann Fears

Crawford and Crystal Sasse Ragsdale, Women in Texas: Their

Lives, Their Experiences, Their Accomplishments (Burnet,

Texas: Eakin Press, 1982), 8; Wood v. Wheeler, 7 Texas

Reports 19-21 (1851); Jones v. Taylor, 7 Texas Reports, 267-

47; William Ransom Hogan, The Texas Republic: A Social and

Economic History (Reprint; Austin: University of Texas

Press, 1990), 246; Lazarou, Concealed, 54, 59, 64, 73;

Gammel, Laws of Texas 2: 1293, 2:1459.

18. June 15, 1836, Nacogdoches Archives, University of Texas

at Austin. The outcome of this case is not contained in the

archives.

224

19. Ibid., Sept. 17, 1840; Oct. 9, 1840.

20. Ibid., Nov. 1, 1840.

21. Ibid., May 8, 1837; Oct. 8, 1837; June 19, 1837; Jan. 6,

1838; Jan. 2, 1838.

22. Andrew Frost Muir, ed., Texas in 1837, an Anonymous,

Contemporary Narrative (Austin: University of Texas Press,

1958), 216; Lynch, The Bench and Bar of Texas, 65-73; J.

Wilmer Dallam, A Digest of the Laws of Texas (Baltimore:

John D. Toy, 1845), 548-553.

23. Hogan, The Texas Republic, 97-98.

24. Ibid., 98-99.

225

CHAPTER 10

THE STATE OF TEXAS AND ITS LEGAL SYSTEM

James K. Polk made the annexation of Texas a prime

issue in the 1844 U.S. presidential election. The

annexation process was more involved than anyone expected,

but Texas finally became a state in 1845. The statehood

constitution made several changes from the Republic

Constitution, and the state legislature passed several laws

dealing with marital property. The state courts interpreted

these laws to protect both women and the family homestead,

to the detriment of creditors. By 1850 Texas had introduced

the concept of community property to the remainder of the

United States, some of which adopted the community property

sytem as more equitable to women.

The Republic of Texas had not experienced the successes

its founders had envisioned. The economy remained

troublesome and the government could not pay off its debts.

Individuals also could not accumulate enough capital to

retire their debts in the U.S. The Mexican nation refused

to acknowledge the independence of the Republic and invaded

the area twice in 1842. Foreign nations hesitated to

226

recognize Texas, because they did not want to antagonize

Mexico. Thousands of people immigrated from the southern

United States, expecting that Texas would soon join the

Union, but Whigs and abolitionists blocked this action for

years. President John Tyler=s southern leanings prompted

Secretary of State John C. Calhoun to negotiate a treaty

with the Republic. This treaty would have added Texas, as a

territory, to the Union in the Spring of 1844, but it did

not receive the necessary two-thirds majority in the

Senate.1

The annexation of Texas then became the foremost issue

in the 1844 presidential election. Henry Clay, as the Whig

candidate, tried to avoid taking a direct stand, but most

Whigs opposed annexation. The Liberty Party candidate,

James Birney, also tried to play down the question, but most

party members were against the addition of another slave

state to the union. It was the Democratic candidate, James

K. Polk, who campaigned vigorously on the issue of Manifest

Destiny, promising to annex both Texas and Oregon. He won

the election, and proclaimed that the vote in his favor

showed that the majority of people in the U.S. wanted to

annex Texas.2

President Tyler, motivated perhaps by the desire to

steal some of Polk=s thunder, began the annexation process

227

in December 1844. He told Congress that the election was a

mandate for western progress and that they should therefore

annex Texas as quickly as possible, but there were still not

enough votes in the Senate to accomplish this by a treaty.

Accordingly, Congress passed a joint resolution for

annexation. The February 28, 1845, document allowed Texas

to enter as a state, not as a territory. Texas would cede

to the United States its public edifices such as army and

navy bases and fortifications but would keep its public

domain in order to pay off its debt. The new state could be

divided into as many as five states if the people so chose,

and slavery would be allowed in all territory south of the

36Ε 30' line of the Missouri Compromise.3

Tyler signed the resolution, whereupon it went to the

Texas government for approval and adoption. Anson Jones,

then president of the Republic of Texas, was not as ardently

supportive of annexation as were some of his compatriots.

Britain and France also opposed annexation, and their

ambassadors persuaded Jones to accept a slight delay on the

question while they tried to persuade Mexico to recognize

the independence of Texas. The people of Texas, however,

wanted the annexation process to continue, so Jones called

for a convention to meet in July 1845. When the Texas

Congress met in May 1845, they approved the convention and

228

adjourned, not even considering the pending offer of Mexico

to recognize the Republic.4

The only public opposition to annexation came over the

issues of banking and creditors= rights. In an open letter

to Sam Houston, published in the Texas National Register, an

author calling himself Αan East Texas resident≅ argued

against annexation because Texas was still free of Αthe

villainous banking system.≅ He thought that Texas was a

better place to live than the United States, because there

were Αno high tariff men and no nullifiers. We have no

abolitionists and no slavery men.≅ He feared that federal

laws, when enforced in Texas, would break the unity of the

nation, much as it had when enforced in the southern

states.5

While the annexation convention was meeting, another

article in the same newspaper told of the public=s attitude

towards banks. The banking system went against society

because banks made money without working for it; this

amounted to fraud of some undefined sort. This anonymous

author feared that if banks were legalized in Texas they

would impoverish every citizen. ΑThe system of banking

tends to demoralize the community,≅ he wrote. ΑBanks are

dangerous to the state.≅ He also made a strong point when

229

he stated that, Α[i]f any people in America have been

victimized by banking institutions, they are the emigrants

of Texas. A large class of the population of this country

are Southerners whose fortunes have been ruined by bank

speculations.≅6

Members of the convention agreed. Thomas Jefferson

Rusk, who presided over the convention, said, ΑI consider

it a bright page in the history of General Jackson, that he

has the honor of giving the blow that will destroy them

[banks] upon our continent. And I wish by no vote of mine,

here or elsewhere, to authorize the institution of a bank,

which may benefit a few individuals, but will carry, here as

elsewhere, ruin, want, misery and degradation in its train.≅

Other members concurred. ΑI look upon it [banking] as an

artifice invented by the cunning, to practice frauds upon

the ignorant.≅ The few delegates who favored allowing banks

wanted them to be heavily controlled and limited in number.7

When the convention met in July 1845, they accepted the

invitation to join the U.S. with only one vote against the

measure. The lone nay-sayer was Richard Bache of Galveston

County. His reason for that vote was personal. He had

gotten a divorce in the United States before coming to

Texas. Apparently he had vowed that he would never again

230

live in the same country as his former wife, so he voted

against annexation.8

One of the first concerns of the convention was how to

keep the property of Texas citizens out of the hands of

banks in the United States. The delegates discussed several

proposals to limit the jurisdiction of U.S. courts over

property in Texas, at least until the statute of limitations

had run out on most people=s debts. One proposition was to

give to the state of Texas all power to adjudicate the land

titles within the state, but a member pointed out that the

state constitution could not contradict the U.S.

Constitution, so that the proposal could not be adopted.9

The delegates offered many proposals but could not find

a solution to their dilemma until Nicholas Henry Darnell

offered the following:

Resolved, that the Committee on General Provisions

be instructed to enquire into the expediency of

providing by law, at the earliest day practicable,

that all or one-half the property belonging to the

wife by deed, gift, bequest, or inheritance at the

time of her marriage, shall remain the property of

the wife, as also one-half of the property of the

husband at the time of his marriage shall vest, as

also one-half of all the property that shall be

231

acquired after marriage, after payment of all just

debts shall likewise vest in the wife; also the

proceeds of the property belonging to the wife

shall be at her disposal.

Only the last clause was controversial and stricken. The

rest of the resolution carried. The delegates had found a

way to keep family property out of the hands of U.S. banks.

Apparently these delegates wanted, as their primary purpose,

to use community property to keep creditors and U.S. banks

from foreclosing on Texas property, but later judges and

lawmakers would use this provision to protect the rights of

women in Texas.10

The major task of the convention was to write the

statehood constitution. Section 22, dealing with land

titles, included a homestead provision. Under this

provision, neither the state nor creditors could seize a

person=s homestead to pay off their debts. The delegates

all agreed that the homestead exemption should be included,

but they argued over what the homestead should include. The

delegates also agreed that a husband should not be able to

sell the family homestead without the consent of the wife.

ΑThe spirit of the age is opposed to taking a woman=s bed

from under her, if she has a worthless and trifling

husband.≅11

232

The delegates also discussed whether they were

protecting only the women and children or all heads of

household. The answer was, ΑWe wish only to assert a

provision, that if the husband even by his criminal

prodigality is reduced to necessity, his wife and little

ones may not be turned out of their homes, to satisfy the

remorseless cravings of the heartless creditor.≅ All seemed

to agree with Thomas J. Rusk, president of the convention,

when he said that selling all possession of a debtor=s

family Αis one of the evils attendant upon the credit

system, by which thousands have suffered the extremity of

penury and want. I believe that the credit system is a

great injury to any country, and is productive of very

little good.≅ R. E. B. Baylor supported this statement by

his experience in Alabama, namely, that a homestead

exemption there had been very popular. He was satisfied

that this law would protect poor ignorant people, women, and

children.12

John Hemphill was chairman of the Judiciary Committee

and played an enormous role in defining women=s legal

rights. The committee, reporting on section 18 of the

General Provisions article of the constitution, said that

the legislature should define separate and community

233

property and the rules of intestate succession. Hemphill

wanted section 18 to read, ΑNo law shall ever be passed,

vesting in the husband, by virtue of marriage, the separate

property of the wife, as now recognized by law, or depriving

her of the portion of the common property to which she is

now entitled, nor shall the separate property of either

partner ever be made liable for the debts of the other,

contracted before marriage.≅ The minority report, by John

Armstrong and R. E. B. Baylor, showed the influence of

English law. They wanted only Αone-third part of the

property of the husband at the time of his death, including

the homestead, to remain to the widow during her widowhood.≅

In effect, they wanted the widow to have the one-third life

estate found in English common law.13

In a debate the next day on which report to accept,

several members voiced their opinions on the subjects of

separate property for women and family protection from

creditors. Convention President Rusk thought that the

common law was not enough protection for women. On the

other hand, the laws of Spain took too much power away from

the husband. Delegate Gustavus A. Everts wanted to use

Spanish laws to protect children but not women, and James

Davis wanted to make sure that a wife=s separate property

234

included what she brought into marriage and that this

property would be protected from the husband=s creditors.

N. H. Darnell wanted the wife=s separate property

protections to be part of the Constitution, not left to the

legislature. He did not trust future legislators to

maintain these protections.14

Armstrong and Hemphill both argued for their positions.

Armstrong said that his position made men and women more

equal partners in the community, because he defined a wife=s

property as all property that she either brought into the

marriage or afterward acquired by gift, devise, or descent,

while Hemphill=s report only protected her land and slaves.

Hemphill responded with a history of the law in Texas,

showing its derivation from the Spanish legal system, and

declaring that his stance would protect the wife from

Αprodigality or fraud≅ without injuring the rights of the

husband. He threatened the convention with the horrible

prospect of the common law. That if they did not adopt his

position, then:

all slaves, money and every other species of

property, land excepted, which the wife brings

with the marriage, or acquires thereafter, become

the sole and absolute property of the husband.

235

The whole may be absorbed in the payment of his

debts before marriage; may be lost in speculations

or at the gambling table; may be wasted and

entirely destroyed, or may be given away in the

presence of his deserted and beggared wife, to the

most unworthy wretches, with the most complete

impunity, without responsibility and without

impediment interposed or remedy afforded by law.

Despite this prophesy of doom, the convention voted 30 to 19

to adopt the minority position instead of Hemphill=s

version.15

The final version of the separate property definition

became section 19 of the statehood constitution. It read,

ΑAll property both real and personal of the wife, owned or

claimed by her before marriage, and that acquired afterwards

by gift, devise, or descent, shall be her separate property:

and laws shall be passed more clearly defining the rights of

the wife, in relation as well to her separate property, as

that held in common with her husband. Laws shall also be

passed providing for the registration of the wife's separate

property.≅ The next section reserved all property rights as

they had been during the Republic. This section preserved

authentic land titles for all people in general, but

specifically ensured that a woman=s separate property during

236

the Republic era would remain her separate property after

statehood. ΑThe rights of property and of action which

have been acquired under the Constitution and laws of the

Republic of Texas shall not be divested; nor shall any

rights or actions, which have been divested, barred, or

declared null and void, by the Constitution and laws of the

Republic of Texas, be re-invested, revived or reinstated by

this Constitution; but the same shall remain precisely in

the situation which they were before the adoption of this

Constitution.≅16

The homestead clause, article 7, section 22, was

designed to protect all of the family from foreclosure by

creditors. The section also kept the Spanish-heritage rule

that the husband had to have the wife=s consent to sell the

homestead. Section 22 read:

The Legislature shall have power to protect by law

from forced sale a certain portion of the property

of all heads of families. The homestead of a

family not to exceed two hundred acres of land

(not including in a town or city) or any town or

city lot or lots in value not to exceed two

thousand dollars, shall not be subject to forced

sale, for any debts hereafter contracted, nor

shall the owner if a married man, be at liberty to

237

alienate the same, unless by the consent of the

wife, in such manner as the Legislature may

hereafter point out.

These three clauses demonstrate the desire of the convention

to protect family property from creditors, while leaving

most of the details to the legislature. Texas voters

overwhelmingly approved the constitution in October 1845.

President Jones signed the final paperwork on December 29,

1845. In a ceremony at the new state=s capitol on February

19, 1846, Jones proclaimed, ΑThe final act in this great

drama is now performed; the Republic of Texas is no more.≅17

The legislature quickly took up its duties; the first

session of the Texas state legislature met from February 16

to May 13, 1846. Most of the laws passed during those three

months were to organize the state and delineate the duties

of various officials. By far the most numerous type of law

was that which set up the new counties. The second most

numerous type of law defined the boundaries of the new

counties. Some atypical laws were those that established

the Odd Fellows and Free Masons in Texas, and one that

prohibited individuals from printing promissory notes. The

first major law established the militia: it passed on April

21, 1846. A week later the first tax law in the state

passed on April 28, and the next day the legislature

238

continued its work begun in the constitutional conventions

by defining women=s separate property in a way that

protected it from creditors of the husband.18

The law of April 29, 1846, ΑAn Act to provide for the

Registration of the Separate Property of Married Women≅

identified a wife=s separate property as, Αall property,

real and personal, owned or claimed by married women, or

which may be owned or claimed at the time of the marriage,

by any woman, or which they may acquire by gift, devise, or

descent.≅ This property had to be registered in order to be

protected from her husband=s creditors. The property had to

be registered in the county where it was actually located,

and, if the wife lived elsewhere, it also had to be

registered where she lived. Once her separate property was

so registered, it could not be used to pay her husband=s

debts.19

The next day, legislators passed a related law. The

law of April 30, 1846, ΑAn Act Defining the Mode of

Conveying Property in which the Wife has an Interest,≅ set

forth the form of the privy examination. The wife had to be

taken apart from her husband and declare to an uninterested

party, usually a notary public, that she was making the sale

239

of her own free will, that she realized what she was doing,

and that her husband had not pressured her in making the

sale. The law specifically included Αland, slave or

slaves, or other effects, or the homestead of the family,≅

in which the wife might have a proprietary interest.

Section 3 declared that the law applied to the family=s

homestead as defined in the constitution and to Αproperty

owned or claimed by the wife before marriage, and that

acquired afterward by gift, devise, or descent.≅ Section 4

repealed all previous laws regarding the wife=s sale of

property. The legislators intended this provision to

protect women from unscrupulous husbands, preventing the

husband from selling the wife=s property without her

knowledge or consent, as he was entitled to do under English

common law. The Spanish concept of the wife=s partnership in

the marriage was used here for the protection of the wife

from her husband, not from her husband=s creditors. It had

the effect, though, of protecting community property,

especially the homestead, from being used as collateral by

creditors because that property could not be seized to pay

the husband=s debts without the wife=s consent.20

The state legislature also passed a private law that

shows it wanted to promote stable marriages and family life

240

in Texas. On April 4, 1846, the legislature legalized the

marriage of Samuel M. Parry and Elizabeth Neese. This

putative marriage had apparently been in existence for some

time, because the law also legitimated the eight children of

that marriage. These three laws were the only ones passed

by the first legislature regarding the rights of women. The

final weeks of the session were filled by the processes of

setting up the new government.21

The constitution declared that the state legislature

should meet only every other year. In 1848, the new

legislature met and passed a few laws that affected the

rights of women. These laws were part of the intestate

succession process delineated in the law of March 18, 1848.

This law mingled the English and Spanish procedures, giving

equal rights of inheritance to heirs of both genders.

Section 3 of that law stated that it did not matter whether

the intestate estate came from the father or the mother,

from separate or community property, or through purchase by

the intestate. All property vested in the same manner

regardless of how it had been acquired.22

Section 4 declared that the property of an intestate

survived by a spouse should be divided as follows: If the

deceased had children, the surviving spouse received one-

third of the personal estate, not including slaves, with the

241

other two-thirds going to the children. The surviving

spouse also received a life estate in one-third of the land

and slaves of the deceased, with remainder going to the

children. If the deceased had no living descendants, then

the surviving spouse received all of the personal estate,

except slaves, and a life estate in one-half of the land and

slaves, with the remainder going to the deceased=s parents

and siblings as prescribed in other parts of the law. If

the deceased had no living relatives, then the surviving

spouse received all of the personal estate. Note that all

of the above applied only to the separate property and the

one-half of the community that was owned by the deceased.

The surviving spouse received his or her half of the

community before the rest of the property was distributed.23

On March 20, 1848, the legislature passed another law

dealing with the probate of estates. Section 24 stated that

when a married woman acted as executrix or administratrix,

she had to have her husband join with her to get her bond.

That bond would then bind her as if she were a femme sole,

that is, she could not repudiate it on the grounds that she,

as a married woman, lacked capacity to make a binding

contract. The husband and wife acted jointly in her

capacity as executrix or administratrix. The husband would

242

be liable for the acts of the wife, even when she was

representing an estate.24

An interesting law showing that the legislature assumed

that a married woman was incapable of acting on her own

behalf passed on March 1, 1848. This act authorized Sarah

Ann Kelton, wife of Oliver P. Kelton, to sell her own

property. Oliver had been confirmed a lunatic and therefore

was unable to manage the community business, so the law said

that Αshe is hereby authorized to sell and convey her

separate property, consisting of real estate and negroes,

and otherwise to transact business as a femme sole.≅ All

her acts concerning the management of her property were

declared valid, Αlaws to the contrary notwithstanding.≅

This special circumstance shows that the legislators of

Texas, representing their constituents, believed that

married women should not be conducting business, even when

it pertained to their separate property. It took the

declaration of incompetence of the husband to allow the wife

to sell her own property. The law did not allow her to sell

any part of the community or to manage the separate property

of her husband.25

The third regular meeting of the legislature of the

state of Texas took place in 1850. The only law passed that

concerned the family was ΑAn Act to Prescribe the Mode of

243

Adoption.≅ During statehood, the legislature had passed

various laws authorizing name changes for adoptees and

declaring them to be the legal heirs of their adoptive

parents, but in 1850 the responsibility for adoption shifted

to the county clerks. From that time forward, all adoption

would be registered by the county clerk in the county of

residence of the parties. Adopted parties were to be

treated the same as biological children, except that adopted

heirs could not inherit more than one-fourth of the

adopter=s estate that could be distributed by will. After

the passage of this act, the legislature did not authorize

any additional adoptions.26

The Texas Supreme Court also had a chance to speak on

the issue of women=s rights during the first few years of

statehood. Chief Justice John Hemphill wrote most of these

opinions and usually drew heavily upon Spanish law in making

his decisions. The other justices seemed just as concerned

about protecting women but drew their arguments from English

equity courts and the common law as practiced in the

southern states. The first such case was H. C. McIntire v.

Harriet C. Chappell. Chappell, a married woman, sued

McIntire. The defendant pleaded that, because she was a

married woman, her husband had to join the suit for it to be

valid. Her husband refused to join her in her lawsuit, so

244

the question to the Supreme Court was, was it absolutely

necessary to have the joinder of the husband? In his

decision, Hemphill reviewed the laws of England and Spain,

both of which preferred the husband to bring suit in his own

name, or that the suit be in the name of both, jointly.

Here, however, the husband had refused to join. Hemphill

ruled that the husband=s refusal could not take away the

wife=s right to sue. His joinder was supposed to protect

the wife, not to deny her any rights. Hemphill declared

that the wife had the right to sue in this case.27

A similar case came to the court in 1849. Mitchell &

Mitchell v. Wright, Administratrix began as a probate matter

that included a divorce. Mrs. Wright was the administratrix

of the estate of Peter N. Hays. Mitchell & Mitchell owed

her money in her capacity as administratrix, but when she

tried to sue to collect the note, they claimed that she

lacked capacity as a married woman. John D. Wright, her

husband, refused to join her in this suit, because they were

getting a divorce at that time. The law of 1848, section

24, required the joinder of the husband when a married woman

acted as administratrix. Justice Abner S. Lipscomb=s

opinion followed the law, that a married administratrix must

be joined by her husband, and that she could not act alone

to collect the note due her as an administratrix. The case

245

was remanded, to allow her to introduce evidence that her

husband had refused to sign. The mere fact of the pending

divorce was not great enough to allow an exception from the

law.28

In 1849 the Supreme Court heard the case Callahan v.

Patterson and Patterson. The Pattersons had sold land to

Callahan, to pay the debts of Sarah E. Patterson, contracted

before her marriage to James D. Patterson. Sarah, being

ill, did not make the fifteen-mile trip that would have been

necessary to make a privy examination as part of the sale.

Sarah then died, and her heir, Robert Patterson, sued to

void the sale of the property. Abner Lipscomb wrote the

majority opinion in this case. Apparently forgetting that

he was the author of section 19 of the General Provisions

title of the Texas constitution, Lipscomb wrote, ΑIt seems

to have been a favorite object of the framers of our

Constitution to secure to the wife her separate property.≅

He then quoted the definitions of a wife=s separate property

and the act defining the mode of conveyance of that

property. That law required the privy examination of the

wife in order for any sale of any property in which she had

or may have had an interest. Because Sarah was not privily

examined, the deed could not take effect.29

246

Lipscomb went on to examine whether the plaintiff had

any remedy in equity. He ruled that the separate property

of a wife was liable for debts contracted by her before

marriage; that the husband had a duty to support his wife

and their children; that he should first do this out of the

community property, but if necessary out of his own separate

property; and that if the husband could not support the

family, then the property of the wife was liable for that

purpose. The case was affirmed without prejudice, leaving

the creditor able to sue again if he could prove that his

debt should be paid from Sarah=s separate property.30

Hemphill dissented from this opinion. He questioned

whether the law as it read allowed a wife to make a full

conveyance in cases where that might defraud the husband of

his rights. Here, the wife indicated that she intended to

convey her separate property to pay her own debts, so

Hemphill thought that she should be able to do this. He

wanted femme coverts to be able to sell their separate

property as if they were femme soles, but the law did not

quite allow this. Hemphill said that the law contravened

the doctrines of equity jurisprudence.31

In the same session, the court heard the case of

McIntyre v. Chappell, now returned to the Supreme Court on

other points of error. Here, the full facts of the case are

247

given. James McIntyre married Harriet in Tennessee in 1840,

with the intent of moving to Texas. James came to Texas

alone, planted crops, and improved the land before returning

to Tennessee to bring his wife back to Texas. At the time

of the marriage, each party owned slaves in Tennessee.

James sold some of these slaves in Tennessee and brought

others to Texas. He died in 1844. His widow, Harriet,

married the defendant Chappell, who sued to recover some of

the slaves on behalf of Sarah McIntyre, minor heir of James.

The suit turned on which law ruled the sale of the slaves in

Texas, the common law as it was followed in Tennessee, or

community property law as practiced in Texas.32

Justice Wheeler wrote the decision. He said that

Tennessee was the domicile of the couple when they married,

so Tennessee law applied. Under that law, as in the common

law, all of a wife=s property became the husband=s property

upon their marriage, so full title to the slaves vested in

the husband. He could sell them freely without her

knowledge or consent. Also, in Texas in 1840, the common

law as practiced in Louisiana was the law of the land, so

again, the slaves of the wife belonged to the husband. Even

in Texas, property was presumed to be community property,

unless proven to be separate, so again, the husband had the

right, in 1840, to sell the property. However, the child

248

born to the slaves after the move to Texas was an increase

of either separate or community property, and therefore

belonged to the community. Community property must go to

the heirs of the deceased, in this case, to the minor Sarah

McIntyre.33

Chief Justice Hemphill=s decision in Cartwright v.

Hollis and Wife gives a good overview of the common law and

Texas law concerning the wife=s ability to dispose of her

separate estate. In 1846 William Hollis tried to buy

supplies for his plantation from a man named Cartwright.

Hollis had no money and no separate property of his own, nor

was there enough community property held by the couple to

use as collateral for the supplies. Elizabeth Hollis,

though, had a large amount of separate property, including

land, cattle and slaves. Apparently the plantation belonged

to her, though that was not entered into evidence. She and

her husband executed a joint promissory note to pay for the

goods, and Cartwright agreed to this deal. When Cartwright

tried to collect the note, the Hollises refused to pay it,

saying that the separate property of the wife could not be

used as collateral for the husband=s debts.34

The question of the case was whether a married woman

could contract away her separate property by means of a

joint promissory note. Hemphill discussed the common law,

249

namely, that the husband had complete management of the

wife=s property. Under that system, the wife could not make

a promissory note, a form of contract, even with her

husband, because she had no legal existence separate from

him. Equity courts, however, did allow that the wife had

her own existence and could control her separate property in

limited circumstances. Hemphill then discussed the Texas

law of 1840, which declared that the separate property of

the wife remained hers throughout the marriage but that the

husband had sole management of it. The fourth section of

that law made the wife=s separate property liable for her

necessaries. Hemphill pointed out that it was difficult to

tell, by the 1840 law, what part of the wife=s separate

property was and was not liable, and exactly what

constituted necessaries.35

Hemphill declared that the law of 1840 did not intend

to allow the husband to encumber the wife=s separate

property for his own gain, but merely to allow him to run

the daily business of raising crops, for example, without

having to get a notary to validate each act of plowing,

planting, and reaping the wife=s separate property farm.

The wife=s separate property was protected by the statehood

constitution. ΑSuch laws as have for their object the

250

preservation of the estate and the wife=s rights from the

influence of her affection for her husband, or from his

fraud, oppression, and circumvention, or that of others,

should be enforced according to their spirit and intention,

but not so construed as to deprive the wife, or the husband

as her legal agent, of the power of contracting for the

supplies necessary for the use of such property.≅ When a

wife voluntarily consented to the alienation of her property

for the benefit of the rest of her property, she could be

held to her contract.36

William and Elizabeth Hollis had another case before

the Supreme Court that year. In Hollis and Wife v. Francois

and Border, Chief Justice Hemphill again had the opportunity

to expound on the issue of a wife=s separate property. In

November 1845, the Hollises executed a mortgage on two of

Elizabeth=s slaves to buy farming implements. The mortgage

included a privy examination of Elizabeth that followed the

forms prescribed by law for a married woman to dispose of

her property. When Francois and Border tried to collect on

the mortgage, the Hollises refused to pay, saying that

Elizabeth, as a married woman, could not be held to a

contract.37

Hemphill agreed that under common law, Elizabeth would

not be liable for the contract. However, this mortgage was

251

not made in a common law state, but in Texas, where statutes

controlled a wife=s power to alienate her separate property.

Here, there was no fraud or coercion on the part of the

husband, nor was their fraud on the part of the creditor.

The general rule was that when a husband and wife jointly

encumbered his, her, or their property, the debt was to be

paid first out of the community, then out of his separate

property, and lastly from the wife=s separate property.

William Hollis had no separate property and there was no

community property, so Elizabeth Hollis=s separate property

became liable for the debt. This rule was especially true

when the debt incurred accrued to the benefit of the

separate property, as was the case here. The farming

utensils purchased with the mortgage were used on her

separate property farm. The wife can, therefore, under

Texas law, validly encumber her estate, if she waives her

disabilities by privy examination.38

The case of Edrington v. Mayfield and Wife also

involved a wife=s separate property. The Mayfields lived in

Texas, but went to visit relatives in Tennessee. During

this visit, the wife=s uncle gave her a slave. In 1845,

after the couple and the slave returned to Texas, the slave

was levied upon to pay the debts of the husband. Hemphill

252

ruled that the laws of Texas, not those of Tennessee,

controlled the gift of the slave. Though under Tennessee=s

common law, the slave would have been liable in Texas for

the husband=s debts, that was not the rule in Texas. Under

Texas law, gifts remained separate property, so the slave,

though given in Tennessee, was the wife=s separate property

and could not be seized to pay the husband=s debts. ΑThe

capacity of the wife to hold property in her own right,

separate and apart from her husband, is as complete and

perfect as the right of the husband to hold property in his

own right separate and apart from the wife. There is not

the slightest difference in this particular between their

civil rights and capacities.≅39

Justice Lipscomb wrote the last decision of the 1850

session of the Supreme Court that dealt with a wife=s

separate property. Blanchet v. Dugat and Another concerned

the wife=s ability to manage her separate property. The

facts of the case were that the sons of the wife, from a

previous marriage, removed her separate property from the

premises belonging to the husband. The wife consented, even

instigated, the removal of her property, but the husband did

not consent. The husband sued to recover the property,

claiming that he had entire control of it during the

253

marriage, and that when the sons came onto his premises

without his knowledge or consent, they were guilty of

trespass. Lipscomb took up the question of trespass first.

He ruled that the wife often had to act as the husband=s

agent during his absence, even in the management of his

separate property. If a wife called in neighbors to help

control a husband=s unruly slaves during his absence, that

would not be a trespass. Even more strongly then, when a

wife was controlling her own property, the persons who

entered the husband=s premises would not be guilty of

trespass.40

The husband=s absence implied an agency in the wife.

The sons had no reason to believe that the husband had not

consented to the removal, or at least there was no such

evidence presented at the trial, so they could not be guilty

of trespass. Lipscomb also ruled that the wife has the

power to control her separate property in the husband=s

absence. He wrote, ΑIf, under certain circumstances, she

could exercise a control over the husband=s property, most

assuredly she could exercise such power over her own

separate property in his absence.≅ Lipscomb here was

protecting the property rights of the wife even over the

objections of the husband during the marriage.41

254

In the early years of the state of Texas, legislators

and judges worked to protect the property rights of women.

Some men, like the convention delegates, saw women=s

separate property as a way to protect the family from

creditors, while others seemed to view women=s protection as

a good thing in itself. At the constitutional convention,

the separate property issue was definitely seen as a way to

keep family property out of the hands of creditors. The

concept of equity also played a part in these men’s actions

as they used homestead laws to prevent seizure of the family

home by creditors. Because these men’s motivations can be

interpreted only through their actions, it is impossible to

say which idea influenced which man more, equity or fear of

foreclosure. The same men who wrote the constitution later

served as legislators and judges, and in those capacities

continued to expand and enforce the rights of women to keep

and control their separate property. Just as during the

Reconquest, in a frontier situation where women were

necessary to survival, their rights were protected.

Having these rights did not always lead to happiness.

In some cases, the right of women to control their property

worked to their disadvantage, as their property could be

seized to pay their debts. Overall, though, because of the

actions of these Texas men, Texas women found themselves on

255

a far more equal footing regarding property rights, than

anywhere else in the United States.

256

ENDNOTES FOR CHAPTER 10

1. Archie P. McDonald, ΑLone Star on the Rise,≅ in Texas: A

Sesquicentennial Celebration ed. Donald W. Whisenhunt

(Austin: Eakin Press, 1984), 89-90.

2. Ibid., 90; Rupert N. Richardson, Ernest Wallace, and

Adrian Anderson, Texas: The Lone Star State (5th ed.;

Englewood Cliffs, NJ: Prentice Hall, 1988), 148.

3. Debates of the Texas Convention (Houston, 1846), 10-11;

Richardson, Texas, 147-49; McDonald, ΑLone Star,≅ 90.

4. Richardson, Texas, 90-91; McDonald, ΑLone Star,≅ 149.

5. Texas National Register (Washington, Texas) April 24,

1845.

6. Ibid., July 24, 1845.

7. Debates of the Texas Convention, 453-62, quotes on 461.

8. Randolph B. Campbell, ed., Texas History Documents to

accompany Henretta, Brownlee, Brody, Ware, and Johnson:

America=s History vol. 1 to 1877 (3rd ed.; New York: Worth

257

Publishers, 1997), 44.

9. Debates of the Texas Convention, 37-45.

10. Ibid., 53-55.

11. Ibid., 417-18.

12. Ibid., 419-426, quotes on 420 and 421.

13. Ibid., 505-508.

14. Ibid., 598-601.

15. Ibid., 595-98, quote on 597.

16. Constitution of the State of Texas of 1845, Title 7,

Sections 19 and 20 in The Laws of Texas 1822-1897 compiled

and arranged by H. P. N. Gammel, with an introduction by C.

W. Raines (10 vols.; Austin: Gammel Book Company, 1898)

2:1275-1302, sections cited on 1293-94.

17. Ibid., Title 7, Section 22; Richardson, et al., Texas,

149.

18. Gammel, Laws of Texas, volume 2 contains all the laws

passed by the first legislature of the state of Texas. The

law establishing the Odd Fellows is on 2: 1359; the Free

258

Masons is on 2: 1450; prohibiting promissory notes is on 2:

1359; establishing the militia is on 2: 1400; the first tax

law is on 2: 1452.

19. Ibid., 2: 1459.

20. Ibid., 2: 1462.

21. Ibid., 2: 1715.

22. Ibid., 3: 130.

23. Ibid., 3: 130-31.

24. Ibid., 3: 242.

25. Ibid., 3: 364.

26. Ibid., 3: 474.

27. H. C. McIntire v. Harriet C. Chappell, 2 Texas Reports

378.

28. Mitchell & Mitchell v. Wright, Administratrix, 4 Texas

Reports 283.

29. Callahan v. Patterson and Patterson, 4 Texas Reports 61.

30. Ibid.

259

31. Ibid.

32. McIntyre v. Chappell, 4 Texas Reports 187.

33. Ibid.

34. Cartwright v. Hollis and Wife, 5 Texas Reports 153.

35. Ibid.

36. Ibid.

37. Hollis and Wife v. Francois and Border, 5 Texas Reports

195.

38. Ibid.

39. Edrington v. Mayfield and Wife, 5 Texas Reports 363,

emphasis added.

40. Blanchet v. Dugat and Another, 5 Texas Reports 507.

41. Ibid.

259

CONCLUSION

The study of laws of a particular society reveals much

about it. Promulgated laws, whether royal pronouncements,

judicial decisions, or enactments of a legislative body,

reveal the ideals of that society. Laws are designed to

protect what a society values. Accordingly, laws illustrate

what people feel should be protected, and how it should be

done. Living law, including records from lawsuits and legal

documents, demonstrates how people actually reacted to those

ideals. Since every society=s laws change over time, those

changes illustrate how people react to their altered

environment. Legal history, therefore, examines both the

ideal and the reality of a given environment.

The development of Castilian society during the

tumultuous period of the Reconquest had an immense impact on

the creation of the Castilian legal structure. At that

time, the primary objective was to spread Spanish

civilization throughout the Iberian Peninsula. To this end,

laws protected the values of the community, and expanded the

legal rights of women because they helped perpetuate the

community. Spanish women were important to the process, not

only as child-bearers, but as child-rearers. Women shaped

260

the children who would carry on Spanish traditions and they

took care of the community when the men were away at war, so

it was important that the community protect its women.

Castilian women had many legal rights not granted to

women in the rest of Europe. They presided over bakeries,

wells, laundries, and other gender-related areas. They

could give testimony on what happened in these areas of life

and their word carried as much weight as did men=s. The

most valuable, and unusual, right guaranteed to married

Castilian women was the right to own property in their own

name. Husbands had the right to manage the wife=s property

but only as long as they acted responsibly. Wives could go

to court and take control of their own property if husbands

had acted in an irresponsible and wasteful manner. Wives

also had the guaranteed right to half of the property

accumulated during the marriage. Wives and husbands

participated equally in the marriage and benefitted equally

from it. Husbands could not sell community property without

the wives= consent, nor could they mismanage it.

When the Spanish legal system came to the New World, it

had already evolved procedures in conquering and settling

new lands, and for turning Αuncivilized≅ people into

Spaniards. This legal system, then, did not need to change

261

in Spain=s New World empire, so the rights of women remained

as they had been in Castile. Case law from Spanish Texas

shows that the pioneer women knew their rights and protected

them zealously. These women owned property in their own

names, sued in court to protect their possessions, and left

property to their children in wills. Because Spanish laws

controlled land ownership, American colonists who moved into

Texas had to learn the Spanish system. Perhaps they were

surprised to find that in some ways it was more suitable for

a frontier situation than was the more familiar English

common law.

English common law developed, as did Spanish law, in

response to historical events. In England, after the Norman

Conquest, all land, theoretically, was controlled by the

king. All rights and privileges came from the king and so

laws developed to protect these rights. Common law

especially protected property, because the amount of land

was finite. Since property rights evolved from the feudal

system where the king granted land rights in exchange for

service in combat, men were seen as more fit to own and

control property. Women and the lands that they brought

into their marriage all came under the control of the

husband.

262

Under English common law, married women had no legal

existence of their own. They disappeared from the law; when

husband and wife became one, the husband was the one.

Because of this doctrine, married women could not sign

contracts, could not sue or be sued in court, could not make

wills, and could not own or manage property. Furthermore,

wives had no recourse against abusive, reckless husbands.

Only in extreme circumstances would a court declare a wife

to be a femme sole, able to transact business as if she were

single.

When this legal system crossed the Atlantic, it, too,

changed very little. In English American colonies, all land

belonged to the king until he granted it to a colonial

joint-stock company or proprietor. Property rights came

from the government and laws continued to protect that

government. After the United States won its independence,

few states wanted to change the legal system, which they

considered to be the best and most just in all the world.

In the South, even more than in the North, the common law

system of coverture in states continued to grant all power

to husbands, though some states enacted laws designed to

protect wife=s separate estate, if she had one. In the

1820s and 1830s, as people from the southern United States

263

migrated into Texas, they came into contact with a very

different system.

The Anglo-American colonists promised to obey Mexican

laws, but as their numbers increased, their dedication to

the Mexican government dwindled. Soon the former Americans

were demanding the legal rights they had known in the United

States and rebelled against the arbitrary power of Antonio

López de Santa Anna. When the Texans established their own

government, they instituted English common law as their

legal system. They soon found, though, that the Spanish

system had facets more suitable to frontier life. These

included adoption, homestead, and community property.

The Republic of Texas lasted only a decade, and when

the Texans voted to join the United States, they were

concerned about losing their property to creditors. The

writers of the Texas statehood constitution used the Spanish

common law system to protect their property against bankers.

Once the community property system was in place, though, it

could also be used to protect women from abusive and

wasteful husbands. The Texas Supreme Court, with Chief

Justice John Hemphill in the lead, used Spanish laws to

guarantee equal protection of women=s property rights, even

against their husbands. Women did not always come out the

264

winner, however, because they could no longer rely on the

laws that Αprotected≅ them from their own mistakes.

One irony of this history is that it was men who

created the community property system in Spain, and men who

enforced those laws to protect women in the New World. In

Texas, it was men who wrote community property into the

constitution and men who used those laws to protect Texas

women. It was the lawyers and judges, all men, who

continued to protect women=s rights by enforcing the

community property provisions of the Texas Constitution.

265

APPENDIX A

CHRONOLOGY

209 B.C.E.: Beginning of Roman conquest of the Iberian

Peninsula

27 B.C.E.: Iberian Peninsula pacified and occupied by Rome

98 C.E.: Trajan, first Roman emperor of Spanish origin,

begins his rule

264: Franks and Suevi invade peninsula

411: Barbarians sign alliance with Rome, establishing

military colonies

568-586: Visigothic King Leovigild expels Roman bureaucracy

and unifies peninsula

587: Leovigild=s heir Recared converts to Catholicism

633: Fourth Synod of Toledo declared that it had the power

to confirm elected kings

711: Muslim troops under al-Tariq cross the Strait of

Gibraltar and defeat King Rodrigo at the battle of Guadalete

718: Pelayo, an elected Visigothic king, defeats the Muslim

army at Alcama, beginning the Reconquest

750: Christians under Alfonso I occupy Galicia

266

778: Defeat of Charlemagne at Roncesvalles, death of Roland

791-842: Alonso II prevails and settles lands south of the

Duero River

873-898: Wilfredo the Hairy establishes a Christian kingdom

independent of Franks

930-950: Ramiro II, king of León, defeats Abd al-Rahman III

981: Ramiro III defeated by Almansur, must pay tribute to

Caliph of Córdoba

999-1018: Alfonso V of León restructures his kingdom

1000-1033: Sancho III of Navarre subdues Aragon, takes

possession of Castile, and proclaims himself emperor, but

empire is divided upon his death among his three sons:

Navarre to Garcia III, Castile to Fernando I, Aragon to

Ramiro I

1035-1063: Fernando I of Castile forces Muslims in Toledo,

Seville, and Badajoz to pay tribute. On his death, kingdom

divided between his sons: Castile to Sancho II and León to

Alfonso VI

1065-1109: Alfonso VI reunites the two kingdoms, takes

Toledo

1086: Muslims of Granada, Seville, and Badajoz call in

267

Almoravids as allies against Christians

1102: African Muslims occupy Iberian Peninsula to Zaragoza

1118: Alfonso I of Aragon conquers Zaragoza

1135: Alfonso VII of León proclaimed emperor

1151: Almohades replace Almoravids and retake Almaría

1162: Alfonso II unites Aragon and Barcelona

1195: Almohades defeat Castilians at Alarcos

1212: Alfonso VIII of Castile, with help from Sancho VIII of

Navarre and Pedro II of Aragon, wins at Las Navas de Tolosa

1229: Jaime I of Aragon reconquers Mallorca

1230: Alfonso IX of León takes Mérida and Badajoz

1217-1252: Fernando III, king of Castile and León, conquers

all of Muslim Spain except Granada

1252 - 1284: Alfonso X, the Wise, faces the Mudéjar revolts

of Andalusia and Murcia, drafts the Fuero de las leyes, and

later Las Siete Partidas

1284: Dissident nobles depose Alfonso X; his son Sancho IV

takes power

1309: Fernando IV takes Gibraltar

1312-1350: Alfonso XI fights Granada for twenty-five years,

wins battle of Río Salado in 1340

1369: Pedro the Cruel of Castile murdered by his half-

brother Henry of Trastámara, who then rules as Henry II

268

1464: Henry IV of Castile disinherits his daughter Juana

Αla Beltraneja≅ and names his half-sister Isabella as his

heir

1469: Isabella of Castile and Fernando, Prince of Aragon and

King of Sicily, wed

1474: Civil war in Castile between supporters of Isabella

and Juana Αla Beltraneja≅ ends in victory for Isabella I

1479-1516: Reign of Ferdinand and Isabella (to 1504) and

Juana (to 1516)

1492: Ferdinand and Isabella complete Reconquest by

defeating Granada; discovery of New World

1503: Creation of the Casa de Contratación

1504: Isabella dies, Castile ruled jointly by Ferdinand and

their daughter Juana, though Juana was declared insane most

of the time and Ferdinand ruled in her name

1516: Ferdinand dies, crown goes to Charles I of Spain,

later (1519) Charles V of the Holy Roman Empire

1524: Creation of the Real Consejo de Indias

1556: Charles I abdicates, Philip II takes power until 1598

1558: Defeat of the Spanish Armada by English navy and bad

weather

1598-1621: Reign of Philip III

269

1621-1665: Reign of Philip IV

1665-1700: Reign of Charles II

1700: Hapsburg dynasty in Spain ends with death of Charles

II, War of Spanish Succession begins

1700-1746: Reign of Philip V

1746-1759: Reign of Ferdinand IV

1759-1788: Reign of Charles III

1763: Treaty of Paris gives all land west of Mississippi

River to Spain

1776: Creation of the Commandancy General of the Interior

Provinces

1788-1808: Reign of Charles IV

1800: Spain cedes Louisiana to France

1803: Louisiana Purchase

1808-1814: Joseph Bonaparte on throne of Spain

1810: Miguel Hidalgo begins struggle for Mexican

independence

1819-1821: Adams-Onís Treaty certifies Texas as belonging

to Spain

1821: Mexico gains independence from Spain; Moses Austin

receives empresario grant to settle Texas

1836: Texans declare independence from Mexico, set up

Republic of Texas

270

1845: Texas joins the United States

269

APPENDIX B

The Old Three Hundred

Original Land Grants in Austin=s Colony

Allcorn, Elijah 1824

Allen, Martin 1824

Alley, John 1824

Alley, John 1827

Alley, Rawson 1824

Alley, Thomas 1824

Alley, William 1824

Alsbury, Charles G. 1824

Alsbury, Harvey 1824

Alsbury, Horace 1824

Alsbury, Thomas 1824

Anderson, S. A. 1824

Andrews, John 1824

Andrews, William 1824

Angier, Samuel T. 1824

Austin, John 1824

Austin, Santiago E.B.

1824

Austin, Santiago 1824

Austin, Estevan F. 1824

Bailey, James B. 1824

Balis, Daniel E. 1824

Baratt, William 1827

Barnett, Thomas 1824

Battle, M. M. 1824

Battle, Mills M. 1827

Beard, James 1824

Beason, Benejani 1824

Belknap, Charles 1827

Bell, Josiah 1824

Bell, Thomas B. 1824

Berry, M. 1824

Best, Isaac 1824

Biggam, Fras 1824

Bloodgood, Wm. 1824

Boatwright, Thomas 1824

268

Borden, Thomas 1824 Borden, Thos. 1824

Bostwick, Caleb R. 1824

Bowman, John T. 1824

Bradley, Edward R. 1824

Bradley, John 1824

Bradley, Thomas 1824

Breen, Charles 1824

Brias, Patrick 1827

Bridges, Wm. B. 1824

Bright, David 1824

Brinson, Enoch 1824

Brooks, Bluford 1824

(forfeited)

Brotherington, Robt.1824

Brown, George 1827

Brown, John 1824

Brown, William S. 1824

Buckner, Aylett C. 1824

Buckner, Aylett C. 1824

Burnett, Pumphrey 1824

Burnam, Jesse 1824

Byrd, Micajah 1824

Calliham, Mosis A. 1824

Calvit, Alexr. 1824

Carpenter, David 1824

Carson, William C. 1827

Carter, Samuel 1824

Cartwright, Jesse H.1824

Cartwright, Thomas 1824

Castleman, Sylvanus 1824

Chance, Samuel 1824

Charles, Isaac N. 1827

Chriesman, Horatio 1824

Clarke, Anthony R. 1824

Clark, John C. 1824

Coates, Merit M. 1824

Coles, Jno P. 1824

Cooke, Jno 1824

Cook, James 1824

Cooper, William 1824

Crier, John 1827

Crownover, John 1824

Cummings, James 1824

Cummings, John 1824

Cummings, Rebecca 1824 *

269

Cummings, William 1824

Cummins, James 1824

Curtis, James Sr. 1824

Curits, James Jr. 1824

Curtis, Hinton 1824

Davidson, Samuel 1824

Davis, Thomas 1824

Deckrow, D. 1824

Demos, Charles 1824

Demos, Peter nd

Dewees, Wm. B. 1824

Dickinson, John 1824

Dillard, Nicholas 1824

Duke, Thomas M. 1824

Duty, George 1824

Duty, Joseph 1824

Dyer, Clement C. 1824

Dyer, Clement C. 1824

Earle, Thomas 1824

Edwards, G. E. 1824

Elam, John 1824

(forfeited)

Elder, Robert 1824

Falenash, Charles 1824

Fenton, David 1824

Fields, John F. 1824

Fisher, James 1824

Fitzgerald, David 1824

Flanakin, Isaiah 1824

Flowers, Elisha 1824

Foster, Isaac 1824

Foster, John 1824

Foster, Randolph 1824

Frazier, James 1824

Fulshear, Charles 1824

Garret, Charles 1824

Gates, Samuel 1824

Gates, William 1824

George, Freeman 1824

Gilbert, Preston 1827

Gilbert, Sarah 1827*

Gilleland, Daniel 1824

Gorbet, Chester S. 1824

Gouldrich, Michael 1824

Gray, Thos. 1824

Groce, Jared E. 1824

Guthrie, Robert 1824

Haddan, John 1824

270

Hady, Samuel C. 1824

Hall, George B. 1824

Hall, John W. 1824

Hall, W. J. 1824

Hamilton, David 1827

Harris, Abner 1824

Harris, David 1824

Harris, John R. 1824

Harris, William 1824

Harris, William, J. 1824

Harrison, George 1824

Harvey, William 1824

Haynes, Thomas C. 1824

Hensley, James 1824

Hodge, Alexander 1828

Holland, Francis 1824

Holland, William 1824

Holliman, Kinchen 1824

(forfeited)

Hope, James 1824

Hudson, C. S. 1824

Huff, John 1824

Huff, George 1824

Hughes, Isaac 1824

(forfeited)

Hunter, Eli 1824

Hunter, Johnson 1824

Iiams, John 1824

Ingram, Ira 1824

Ingram, Seth 1824

Irons, John 1824

Isaacks, Samuel 1824

Jackson, Alexander 1824

Jackson, Humphrey 1824

Jackson, Isaac 1824

Jamison, Thomas 1824

Johnson, Henry W. 1824

Jones, Henry 1824

Jones, J. W. 1824

Jones, Oliver 1824

Jones, R. 1824

Jones, R. 1824

Keep, Imla 1824*?

Keller, John C. 1827

Kelly, John 1824

Kennedy, Sam=l 1824

Kennon, Alfred 1824

Kerr, James 1827

271

Kerr, Peter 1824

Kerr, William 1824

Kincheloe, William 1824

Kingston, William 1827

Knight, James 1824

Kuykendall, Abner 1824

Kuykendall, Braz. 1824

Kuykendall, Joseph 1824

Kuykendall, Robert nd

League, Hosea H. 1827

Leakey, Joel 1827

Linsey, Benjamin 1824

Little, John 1828

Little, William 1824

Long, Jane 1827*

Lynch, James 1824

Lynch, Nathanael 1824

Marsh, Shubael 1824

Martin, Wiley 1824

Mathis, William 1824

McCroskey, John 1824

McCormick, Arthur 1824

McCormick, David 1824

McCormick, John 1824

McCoy, Thomas 1824

McFarlan, Aechilles 1824

McFarlan, John 1824

McKenney, Thos. F. 1824

McKinsey, Hugh 1824

McClain, A. W. 1824

McNair, James 1824

McNeel, Daniel 1824

McNeel, George W. 1824

McNeel, John G. 1824

McNeel, John 1824

McNeel, Pleasant 1824

McNeel, Sterling 1824

McNutt, Elizabeth 1824*

McWilliams, William 1824

Milburn, David H. 1824

Miller, Samuel 1824

Miller, Samuel R. 1824

Miller, Simon 1824

Millican, James D. 1824

Millican, Robert 1824

Millican, William 1824

Minus, Joseph 1824

Mitchell, Asa 1824

272

Mitchell, Asa 1824

Monks, John L. nd

(forfeited)

Moore, John H. 1824

Moore, Luke 1824

Morrison, Moses 1824

Morton, William 1824

Mouser, David 1824

Nelson, James 1824

Newman, Joseph 1824

Nuckols, M. B. 1824

Orrick, James 1824

Osborn, Nathan 1824

Parks, Joshua 1824

Parks, William 1824

Parker, William 1824

Pennington, Isaac 1824

Pentecost, George S.1824

Pettus, Freeman 1824

Pettus, William 1824

Petty, John 1824

Peyton, J. C. 1827

Phelps, James A. E. 1824

Philips, I. E. 1827

Phillips, Zeno 1824

Picket, Pamelia 1824*

Polley, Joseph H. 1824

Polley, Joseph 1824

Powell, Peter 1827

Prater, William 1824

Pruitt, Pleasant 1824

Pryor, William 1824

Rabb, Andrew 1824

Rabb, John 1824

Rabb, Thomas J. 1824

Rabb, William 1824

Rabb, William 1824

Rahleigh, William 1824

Ramey, L. 1827

Randon, David 1824

Randon, John 1824

Rankin, Frederic H. 1824

Rawls, Amos 1824

Rawls, Benjamin 1824

Rawls, Daniel 1824

Richardson, Stephen 1824

Roark, Elijah 1824

Robbins, Earle 1824

273

Robbins, William 1824

Roberts, Andrew 1827

Roberts, Noel F. 1824

Roberts, William 1824

Robertson, Edward 1824

Robinson, A. 1824

Robinson, Geo. 1824

Ross, James 1824

San Pierre, Joseph 1824

Scobey, Robert 1824

Scott, James 1824

Scott, Wm. 1824

Selkirk, William 1824

Shelby, David 1824

Shipman, Daniel 1824

Shipman, Moses 1827

Sims, Bartlett 1824

Singleton, G. W. 1827

Smith, Christian 1824

Smith, John 1824

Smeathers, William 1824

Snider, Gabriel S. 1824

Sojourner, Albert L.1824

Spencer, Nancy 1824*

Stafford, Adam 1824

Stafford, William 1824

Stevens, Thomas 1824

Stout, Owen 1824

Strange, James 1824

Sutherland, Walter 1824

Tally, David 1824

Taylor, John I. 1824

Teel, George 1824

Thomas, Ezekiel 1824

Thomas, Jacob 1824

Thompson, Jesse 1824

Tone, Thomas J. 1824

Tong, James F. 1824

Toy, Samuel 1827

Trobough, John 1827

Tumlinson, Elizabeth1824*

Tumlinson, James 1824

Vandorn, Isaac 1828

Varner, Martin 1824

Vince, Allen 1824

Vince, Richard 1824

Vince, Robt. 1824

Vince, Wm. 1824

274

Walker, James 1824

Walker, Thomas 1824

Wallice, Caleb 1824

Wells, Francis F. 1824

Westall, Thomas 1824

White, Amy 1824*

White, Joseph 1824

White, Reuben 1824

White, Walter C. 1824

White, William C. 1824

Whitesides, Boland 1824

Whitesides, Henry 1824

Whitesides, James 1824

Whitesides, William 1824

Whiting, Nathl 1824

Whitlock, William 1824

Wightman, Elias D. 1827

Wilkins, Jane 1824*

Williams, George I. 1824

Williams, Henry 1824

Williams, John 1824

Williams, John R. 1824

(forfeited)

Williams, Robt. H. 1824

Williams, Samuel M. 1824

Williams, Solomon 1824

Williams, Thomas 1824

Woods, Zadock 1827

Present-day counties

include:

Austin, Brazoria, Brazos,

Burleson, Chambers,

Colorado, Fayette, Fort

* marks women as land

owners.

275

Bend, Grimes, Harris,

Jackson, Lavaca, Matagorda,

Waller, Washington, and

Wharton.

275

APPENDIX C

Texas Constitution of 1845

We, the people of the Republic of Texas, acknowledging with

gratitude the grace and beneficence of God, in permitting us

to make [a] choice of our form of government, do in

accordance with the provisions of the Joint Resolution for

annexing Texas to the United States, approved March 1st, one

thousand eight hundred and forty-five, ordain and establish

this Constitution.

. . .

ARTICLE 7. General Provisions.

. . .

SECTION 18. No divorce shall be granted by the Legislature.

SECTION 19. All property both real and personal of the wife,

owned or claimed by her before marriage, and that acquired

afterwards by gift, devise, or descent, shall be her

separated property: and laws shall be passed more clearly

defining the rights of the wife, in relation as well to her

separate property, as that held in common with her husband.

Laws shall also be passed providing for the registration of

the wife's separate property.

276

. . .

SECTION 22. The Legislature shall have power to protect by

law from forced sale a certain portion of the property of

all heads of families. The homestead of a family not to

exceed two hundred acres of land (not including in a town or

city) or any town or city lot or lots in value not to exceed

two thousand dollars, shall not be subject to forced sale,

for any debts hereafter contracted, nor shall the owner if a

married man, be at liberty to alienate the same, unless by

the consent of the wife, in such manner as the Legislature

may hereafter point out.

277

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Austin [Texas] County Marriage Bonds. Microfilm.

Béxar Archives Translations. Microfilm.

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Herr, Richard. The Eighteenth-Century Revolution in Spain.

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283

Lack, Paul D. The Texas Revolutionary Experience: A

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Weddle, Robert S. The French Thorn: Rival Explorers in the

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Austin, Mattie Alice. ΑMunicipal Government of San Fernando

de Béxar.≅ Quarterly of the Texas Historical

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De la Teja, Jesús F. ΑIndians, Soldiers, and Canary

Islanders: The Making of a Texas Frontier Community.≅

Locus: An Historical Journal of Regional Perspectives 3

(Fall 1990): 84.

Matsuda, Mari J. ΑThe West and the Legal Status of Women:

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24 (January 1985): 47-48.

McKnight, Joseph W. ΑLaw Books on the Hispanic Frontier.≅

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Events in the history of England caused its legal

system to develop in a different manner from Spain’s. In

England, the protection of property was the law’s most

important goal. With the growth of English common law,

husbands gained the right to control their wives’s lives in

that married women lost all legal identity.

When the English legal system crossed the Atlantic and

took root in the United States, little changed, especially

in the southern states, when migrants from there entered

Texas. When these Anglo-American colonists came into

contact with Spanish/Mexican laws, they tended to prefer

the legal system they knew best. Accordingly, with the

creation of the Republic of Texas, and later the state of

Texas, most laws derived from English common law. From

Spanish laws, legislators adopted only those that dealt

with the protection of women, developed on the Spanish

frontier, because they were so much more suitable to life

in Texas. Later lawmakers and judges used these same laws

to protect the family’s property from creditors, as well as

to advance the legal status of women in Texas.